Colorado Emergency Paid Sick Leave (HELP Rules) for COVID-19

On March 10, 2020, Colorado Governor Jared Polis declared a State of Disaster Emergency in response to the number of identified coronavirus disease 2019 (COVID-19) cases in the state and beyond. This declaration allows the state to enact emergency measures to protect public health and safety, which includes immediate rules to mitigate the spread of COVID-19. Colorado's Health Emergency Leave with Pay (HELP) Rules require employers to provide employees in certain industries with up to 4 days of paid sick leave while undergoing testing for COVID-19. We suggest all employers review the following requirements and begin adapting internal policies as needed. Communicating the additional benefits and action steps to employees should they become symptomatic is important.

March 26, 2020 Amendments

The CO HELP Rules have been modified to add coverage for retail establishments that sell groceries and employees who are under instructions from a health care provider to quarantine or isolate due to a risk of having COVID-19.

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Summary of Colorado HELP Rules:

  • Requires employers in select industries to provide up to four days of paid sick leave for employees with flu-like symptoms who are being tested for COVID-19 or have been told to quarantine or isolate due to a risk of having COVID-19 (Rule 3.1)
  • Applies to industries that involve extensive contact with the public, such as leisure & hospitality, food services, child care, education, home health care and nursing/assisted living facilities, and retail establishments that sell groceries (Rule 3.1)
    • Per the US Bureau of Labor Statistics, the “leisure & hospitality” sector includes lodging, arts, entertainment, and recreation establishments, such as hotels/motels, museums and galleries, ski areas, and event venues
  • Applies to all employees regardless of status (full time, part time, seasonal, temp, hourly)
  • Employers who already provide paid sick leave do not need to offer additional PTO hours unless employees have exhausted their sick leave hours and meet the criteria under Rule 3.1 (Rule 3.2)
  • Employers shall provide sick leave pay at the employee’s regular rate of pay and regularly worked hours (Rule 3.3)
  • Paid sick leave requirement may end if an employee tests negative for COVID-19 (Rule 3.1)
  • Employers cannot terminate employees if they are unable to provide documentation of illness (Rule 3.4)
  • Family Medical Leave Act (FMLA) provisions do not narrow the rights provided by these rules (Rule 3.4)
  • Failure to comply with these rules is considered a failure to provide wages and are subject to the procedures and remedies under COMPS Order #36 (Rule 4.1)
  • These rules remain in effect for the longer of 30 days after adoption or the duration of the State of Disaster Emergency up to a maximum of 120 days (Rule 6.1)

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Excerpts from Colorado HELP Rules (7 CCR 1103-10) (2020):

3/27 Note: The following excerpts are from the original order; we will update information per the revised order soon.

  • 3.1 Any employer engaged in the field of leisure and hospitality, food services, child care, education at all levels (including related services, including but not limited to cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), operating a nursing home, or operating a community living facility shall provide up to four days of paid sick leave for an employee (A) with flu-like symptoms and (B) who is being tested for COVID-19. The paid sick leave ends if an employee receives a negative COVID-19 test result.
  • 3.2 These rules do not require an employer to offer additional days of paid sick leave if it already offers all employees an amount of paid leave sufficient to comply with Rules 3.1. However, an employee who already exhausted his or her paid leave allotted by the employer, but then has flulike symptoms and is being tested for COVID-19, is entitled to the additional paid sick days provided by Rule 3.1.
  • 3.3 During paid sick leave covered by these rules, pay shall be provided (A) at the employee’s regular rate of pay (the COMPS Order Rule 1.8 definition of “regular rate of pay” is incorporated into this rule), including all forms of wages and compensation (but increased to the applicable minimum wage for an employee paid below the minimum wage due to a tip credit), and (B) for the employer’s regularly worked hours. To the extent that the employee’s rate of pay or hours worked had varied before the absence for illness, pay shall be in the amount of the employee’s average daily pay for the preceding month.
  • 3.4 To the extent feasible, employees and employers should comply with the procedures of the federal Family Medical Leave Act (“FMLA”) to pursue and provide paid sick leave under these rules, except that (A) no employer may terminate an employee for inability to provide documentation during an illness covered by these rules, and (B) FMLA provisions do not narrow the rights and responsibilities provided by these rules.

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Colorado HELP Rules FAQs

Which industries have to provide emergency paid sick leave per HELP?

HELP Rules cover all employees working in the following industries or jobs in Colorado:

  • Leisure and hospitality, including lodging, museums, recreational and entertainment venues
  • Food services
  • Child care
  • Education at all levels, including related services, such as cafeterias and transportation
  • Home health care
  • Nursing home and assisted living communities
  • Retail establishments that sell groceries

If I already offer paid sick leave, do I need to provide additional hours under HELP?

No. If you already offer at least 4 days of paid sick leave, you do not need to provide additional PTO hours. However, if an employee has already exhausted all of their sick leave hours and is displaying flu-like symptoms and getting tested for COVID-19, then you will need to allow additional paid sick leave.

Can I require employees to provide documentation of COVID-19 testing and results in order to qualify for emergency paid sick leave?

Yes, you can require documentation for proof of qualification for emergency paid sick leave. It is not a HIPPA violation to request documentation, such as a doctor’s note, regarding an employee’s ability to be at work. Per HELP, employees qualify for emergency sick leave pay only if they display flu-like symptoms and get tested for COVID-19. You are only required to pay for time an employee missed to complete testing.

What do I do if an employee tests positive for COVID-19?

As an employer, you’re obligated to notify your staff and relevant parties of possible COVID-19 exposure if an employee tests positive. However, per HIPPA, you cannot name or provide details about the affected employee unless they give you permission to do so. You can also require a note from a doctor clearing an employee before they are allowed to return to work.

Can I terminate an employee who takes advantage of this emergency order to get extra paid time off?

No, you cannot terminate an employee for taking time off if they are unable to provide documentation of COVID-19 testing. However, you are not obligated to pay emergency sick leave without proof of testing, and you can conduct disciplinary action if applicable. It’s important that you clearly outline these requirements so employees understand the steps they need to take in order to qualify for emergency paid sick leave.

Do I have to pay for emergency sick leave if an employee is not scheduled to work?

No. If an employee is not on the schedule to work, they do not get paid sick time.

Who do I contact if I have questions or concerns about complying with HELP?

If you have questions regarding Colorado HELP Rules compliance, contact the CO Division of Labor Standards & Statistics at 303-318-8441 or 888-390-7936 to speak to a compliance investigator. The Division will provide additional guidance on what information employers may request from employees, as well as detailed descriptions of the impacted industries on their CO HELP Rules web page.

Do I need to provide emergency paid sick leave pay for illnesses other than COVID-19?

No. HELP rules only apply to employees who display flu-like symptoms and get tested for COVID-19 or have been instructed by a health care provider to quarantine or isolate due to risk of having COVID-19. The intent of HELP is to encourage employees to stay home if they are showing signs of illness.

Do I need to provide emergency paid sick leave for an employee who is caring for someone who tested positive for COVID-19?

No, HELP only applies to employees who may be sick with COVID-19 However, if an employee is caring for someone who has COVID-19, you should require that they work from home or place them on leave of absence to avoid exposing others to the virus.

Starting April 1, employees may be eligible for emergency paid family and sick leave related to COVID-19 per the Families First Coronavirus Response Act.

Will I be reimbursed by the state or federal government if I have to pay for sick leave under HELP?

The Colorado Department of Labor & Employment (CDLE) announced assistance for employers and workers impacted by temporary closures due to COVID-19. Read their press release >>

On Wednesday, March 18, HR 6201 – Families First Coronavirus Response Act was adopted to provide federal financial assistance to those impacted by business closures due to COVID-19. The provisions are effective April 1 - December 31, 2020.

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Colorado HELP Rules and COVID-19 Resources

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Disclaimer: This information is provided as a self-help tool and does not constitute legal or financial advice. Laws, regulations and lending products are changing daily and decisions as to whether or how to use this information and/or what actions to take in response to the COVID19 Pandemic are solely those of the employer. The providers of this information disclaim any and all responsibility and liability for its accuracy, completeness or fitness for your particular business purposes.

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