On Wednesday, March 11, 2020, the Colorado Department of Labor and Employment (“CDLE”) issued the Colorado Health Emergency Leave with Pay Rule (“Colorado HELP”) that requires certain employers to provide paid sick leave for employees with flu-like symptoms and who are undergoing testing for COVID-19. The industries impacted are those employers engaged in the following fields: leisure and hospitality; food services; child care; education; home health care (working with elderly, disabled, ill, or otherwise high-risk individuals); operating a nursing home or operating a community living facility.

If you are in any of these industries, then you must provide employees with 4 days of paid sick leave. This paid sick leave ends if an employee receives a negative COVID-19 test result. This leave is only required if you do not have a current PTO or sick leave policy that is sufficient to comply with this Rule. That said, given the public policy issues behind this Rule, if you have employees who are out of PTO or sick leave and/or who do not have leave sufficient to cover the 4 days, employers should consider providing it so that those who are ill and being tested will not come to work and risk exposing all of your employees and customers/clients to the illness. Also, while not explicit in the Rule, we have discussed with other experts in the field the idea that allowing your employees to go negative in their leave bank may also be sufficient to comply with this Rule. However, if an employee was to leave prior to “refilling” their leave bank, the employer subject to this Rules would not be able to recover this amount from the employee’s final paycheck.

The Colorado HELP Rule took effect immediately and will continue for 30 days or the duration of the declared state of emergency, whichever is longer, up to 120 days. A copy of the Rule is available on CDLE’s website.

In addition, if employers must reduce hours or close their business, or if employees are ill or must care for others, employees may qualify for unemployment insurance benefits, pursuant to the “Lack of work“ (§ 8-73-108(4)(a)), the “health” (§ 8-73-108(4)(b)(I)), the “substantial change in working conditions” (§ 8-73-108(4)(d)) and/or the “caring for an ill family member” (§8-73-108(4)(v)) exceptions outlined in state law. Some employers may want to consider whether advising employees to file such claims. While numerous claims may cause an increase in premiums to increase, this may be less than providing employees with paid leave during any such periods where there is no work.

If you have questions, please feel free to reach out. The situation is fluid and continues to evolve, and we expect more clarification about the scope of this Rule to be forthcoming from CDLE.

What is written here is intended as general information and is not to be construed as legal advice. If legal advice is needed, you should consult an attorney.

Employment Attorney Michelle B. FergusonFor more information contact employment law attorney
Michelle B. Ferguson
at 303-628-3658 or mferguson@irelandstapleton.com