On Wednesday, March 11, the Colorado Department of Labor and Employment (CDLE) published emergency rules which temporarily require employers in certain industries to provide a small amount of paid sick leave to employees with flu-like symptoms while awaiting COVID-19 testing.
The emergency rules took effect on March 11 and will last for 30 days, or longer if the state of emergency declared by the Governor continues.
“Colorado is acting swiftly to contain the spread of this virus. These steps are important for individuals who work with vulnerable populations like older Coloradans and people with underlying health issues. When workers who might have Coronavirus lack paid sick leave, it poses a great risk to our ability to protect the public,” said Gov. Polis. “People want to do right by their fellow Coloradans and stay home when they are ill. But they shouldn’t be forced between doing what’s best for our community or missing rent. I am asking the entire private sector of Colorado to voluntarily offer paid sick leave pending Coronavirus testing results so that we can collectively do our part to contain the spread of the virus.”
On Tuesday, Governor Polis declared a state of emergency for Colorado in response to COVID-19. Included in the Executive Order were directives for the Colorado Department of Labor and Employment to 1) engage in emergency rulemaking for temporary paid sick leave and 2) identify additional supports and wage replacement such as access to unemployment insurance.
The Colorado Health Emergency Leave with Pay Rules (“Colorado HELP” 7 CCR 1103-10) requires up to four days of paid sick for employees being tested for coronavirus COVID-19 in select industries which include: leisure and hospitality; food services; child care; education, including transportation, food service, and related work at educational establishments; home health, if working with elderly, disabled, ill, or otherwise high-risk individuals and; nursing homes and community living facilities.
The requirement is not on top of sick leave an employer already provides and does not cover wage replacement should an employee test positive and require quarantine resulting in lost work time and wages.
Workers are covered regardless of pay rate or method (hourly, weekly, piece rate, etc.); the daily pay during leave is either their established daily rate or, if their pay fluctuates, their average daily pay for the past month.
Today’s emergency rules only speak to paid leave for the four-day period required for testing.
Other wage replacement options, including unemployment insurance, are still under review by the department to determine the specifics for compensation for those who test positive. Under current state law, unemployment insurance benefits are only available to workers who have become unemployed through no fault of their own. The Department is currently reviewing options to expand eligibility under existing rules.
Under Colorado wage and hour law, CDLE’s Division of Labor Standards and Statistics (DLSS) has authority under existing state law to promulgate rules when “[t]he welfare of the state of Colorado demands that workers be protected from conditions of labor that have a pernicious effect on their health and morals, and it is therefore declared … that inadequate wages and unsanitary conditions of labor exert such pernicious effect” (C.R.S. 8-6-101(1)).
FAQs and resource pages for both workers and employers can be found at coloradolaborlaw.gov.