Many Colorado employers will need to immediately provide paid sick leave to certain workers in response to the COVID-19 Coronavirus outbreak. Governor Jared Polis’ March 10, 2020, State of Disaster Emergency declaration, directed the Colorado Department of Labor and Employment (“CDLE”) to issue emergency regulations requiring paid and unpaid sick leave for certain industries. On March 12, 2020, the CDLE released the emergency regulations governing paid sick leave for certain industries. This rule temporarily requires employers in certain industries to provide four (4) days of paid sick leave to employees with flu-like symptoms that are being tested for the COVID-19 coronavirus.
Employers in the following sectors are affected by this new rule:
- Leisure and hospitality;
- Food Services;
- Child Care;
- Education, including transportation, food service, and related work with educational establishments;
- Home health, if working with elderly, disabled ill, or otherwise high-risk individuals;
- Nursing homes; and
- Community living facilities.
If an employer already provides at least four days of sick pay, the employer does not have to provide more. However, if an employee has exhausted their sick leave, and then has flu-like symptoms and is being tested for COVID-19, they are entitled to the four days of paid sick leave.
Employees must be paid their regular rate and for their regularly worked hours. If an employee’s rate of pay or hours worked varies, employers must pay them their average daily pay for the preceding month.
The rule requests that employers and employees comply with the procedures of the federal Family and Medical Leave Act (FMLA) in pursuing leave. However, no employee can be terminated if they are unable to provide documentation during an illness that is due to the coronavirus.
The rule will remain in effect for thirty (30) days or longer if the state of emergency continues.
Employers in these covered industries should consider drafting policies now to cover this emergency rule. Considerations for your policy include:
- Providing four (4) days of paid sick leave to affected employees;
- Determining how to handle any unpaid leave based on a positive test;
- Requiring a doctor’s release prior to returning to work after a positive test;
- Emphasizing that the sick leave will only be provided as long as Colorado remains in the state of emergency; and Stating that the sick pay does not constitute wages and will not be paid out at termination if unused.