The Colorado Department of Labor and Employment has issued amendments to the Colorado HELP Rules, the temporary state paid sick leave program. You can read the amended rules here. These amendments lengthen the duration of the state paid sick leave from 4 days’ full pay to two weeks (80 hours) at 2/3 pay. In order for an employee to qualify for paid leave under the Colorado Help Act, an employee must:
Employers must pay non-tipped employees 2/3 of their average daily pay based on the preceding month. For tipped employees, the employer doesn’t have to estimate tips. Instead, tipped employees need to be paid at least 2/3 the full minimum wage (or more if their hourly wage if higher) – and employers should use their average daily pay for the previous month to calculate hours.
The paid sick leave ends if an employee receives a negative COVID-19 test result and/or once the employee has been fever-free for 72 hours, with other symptoms resolving as well – but not earlier than after seven calendar days off from work, and in no event with more than fourteen paid sick days. These rules do not require an employer to offer additional days of paid sick leave if they already offer all employees an amount of paid leave sufficient to comply with the rules.
Employers may not terminate an employee for inability to provide documentation during an illness covered by these rules. But employers are permitted to request that the employee present the following documentation:
We suggest that if an employee takes off work because they have symptoms and are being tested, then they either need to show a negative test to return to work or provide a release from a doctor before returning to work in the case of a positive test. Since you can’t let them back into the workplace without some type of assurance that they are healthy, hopefully that cuts down on those that would take advantage of the fact that you cannot fire them for failing to provide a test.
Please be aware that our preliminary understanding of this program is that employees will not be able to stack this state paid leave on top of the federal FMLA expansion or paid sick leave. Whenever employers are subject to the HELP Rules as well as federal and/or local law, the law providing greater protection or setting the higher standard shall apply. In many cases, the Emergency Paid Sick Leave under the federal Families First Coronavirus Response Act will provide the greater protection, but if in doubt, we recommend you consult with a lawyer.
The details of the federal paid leave programs can be found here and our webinar on the programs can be found here. We are working with the attorneys in our legal resource center to better understand which paid sick leave programs employees will qualify for, and will update members as soon as possible.
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