Colorado Emergency Paid Sick Leave (HELP Rules) and Healthy Families & Workplaces Act for COVID-19

UPDATE: As of July 15, Colorado's Health Emergency Leave with Pay (HELP) Rules have been replaced by the Colorado Healthy Families & Workplaces Act (HFWA). HWFA requires most Colorado employers to provide up to 2 weeks (up to 80 hours, depending on their weekly hours) of COVID-19-related paid leave through Dec. 31, 2020. We suggest all Colorado employers review HFWA requirements and begin adapting internal policies as needed. Communicating the additional benefits and action steps to employees should they become symptomatic is important. The HELP Rules still apply to COVID-19 paid leave taken by employees from March 11 - July 14, 2020.

Essentially, HFWA expands federal COVID-related paid leave to include employers that are exempt from requirements under the Families First Coronavirus Response Act (FFCRA). Leave taken under FFCRA counts toward HFWA leave; in other words, Colorado workers do not get another 80 hours of paid leave under HFWA in addition to the 80 hours offered under FFCRA. However, if prior COVID-related leave was not paid at full rate per HFWA, then you are required to pay the difference for second qualified leave of absence to equal full rate of pay if leave is not childcare or care of another, which only qualifies for 2/3 rate of pay.

Watch our brief video for an overview of HFWA and compliance requirements. Stay tuned for additional HFWA resources and guidance.

 


CO HELP Rules Overview

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 paid sick leave related to COVID-19. On July 15, the state enacted the Healthy Families & Workplaces Act (HFWA), which replaces CO HELP Rules and expands federal FFCRA paid leave requirements to most Colorado employers.


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Summary of Colorado HELP Rules:

  • Requires employers in select industries to provide up to two weeks 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, retail establishments, real estate sales and leasing, offices and office work, elective medical, dental, and health services, personal care services (defined as hair, beauty, spas, massage, tattoos, pet care, or substantially similar services) (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):

  • 3.1 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, food and beverage manufacturing, retail establishments, real estate sales and leasing, offices and office work, elective medical, dental, and health services, personal care services (defined as hair, beauty, spas, massage, tattoos, pet care, or substantially similar services) shall provide up to TWO weeks of paid sick leave for an employee (A) with flu-like or respiratory illness symptoms and (B) quarantine or isolation instructions from not only "a health care provider" but also an "authorized government official." (C) Paid sick leave ends if an employee receives a negative test result and the individual is asymptomatic for a sufficient period. 
    • NOTE: An amendment on April 27, 2020 expanded required paid leave from four days to two weeks (up to a maximum of 80 hours)
  • 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 flu-like symptoms or respiratory illness symptoms, 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 2/3 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.
    • NOTE: An amendment on April 27, 2020 updated sick leave pay to 2/3 of the employee's regular rate of pay
  • 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
  • Food and beverage manufacturing 
  • Real estate sales and leasing offices and office work
  • Elective medical, dental and health services
  • Personal care services (defined as hair, beauty, spas, massage, tattoos, pet care, or substantially similar services)

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

No. If you already offer at least 2 weeks 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 or respiratory illness symptoms, 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 or respiratory illness symptoms.


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 of 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 or respiratory illness symptoms and gets 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 employee. 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 (FFCRA).


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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