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COVID-19 UPDATE: Emergency Paid Sick Leave Rules March 13,2020

Update, March 26: Today the Colorado Department of Labor and Employment adopted amendments to the Colorado Health Emergency Leave with Pay rules. See the rules here. These changes add coverage for:

  1. an additional industry category, “retail establishments that sell groceries”; and
  2. not just those “being tested” for COVID-19 (as in the original rules), but also those “under instructions from a health care provider to quarantine or isolate due to a risk of having COVID-19.” 
These rules will remain in effect for the longer of (a) 30 days after adoption, or (b) the duration of the State of Disaster Emergency declared by the Governor, up to a maximum of 120 days after the adoption of these temporary rules.

The original rules, adopted March 11, stipulated that all employers engaged in food services & leisure and hospitality (among others) shall provide up to four (4) days of paid sick leave for employees (A) with flu-like symptoms and (B) who are being tested for COVID-19. Provision (B) has now been expanded so that the emergency rule mandating paid sick leave applies to an employee who is exhibiting flu-like symptoms AND (A) is being tested for COVID-19 or (B) is under instructions from a health care provider to quarantine or isolate due to a risk of having COVID-19. Employees must meet both requirements in order to qualify for this mandatory paid sick leave. See FAQs from the State here.

Original details here:

On March 11, the State issued emergency rules regarding paid sick leave for employees in the foodservice industry.

  • All employers engaged in food services & leisure and hospitality (among others) shall provide up to four (4) days of paid sick leave for employees (A) with flu-like symptoms and (B) who are being tested for COVID-19. The emergency rule mandating paid sick leave applies ONLY to an employee who is exhibiting flu-like symptoms AND at the same time is being tested for COVID-19. Employees must meet both requirements in order to qualify for this mandatory paid sick leave.
  • For non-tipped employees, pay them 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 the full minimum wage (or their actual wage if higher) – and use their average daily pay for the previous month to calculate hours.
  • You cannot fire someone for failure to provide documentation that they are sick. However, 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.
  • 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 this rule. However, an employee who has already exhausted his or her paid leave allotted by the employer, but then has flu-like symptoms and being tested for COVID-19, is entitled to the additional paid sick days provided by this rule.
  • These temporary rules are in effect immediately and will remain in effect for the longer of (A) 30 days or (B) the duration of the State of Disaster Emergency declared by the Governor up to 120 days maximum.
  • Note: These rules only speak to the paid leave for the 4 day period required for testing. The Governor has asked the Colorado Dept. of Labor & Employment to identify other potential supports and wage replacement such as access to umemployment insurance in the event that an employee tests positive for COVID-19 and needs quarantine and treatment.
Sample Temporary Paid Sick Leave Policy

Fisher and Phillips Law Firm (part of our Legal Resource Center benefit for members) has graciously provided us with a Sample Temporary Paid Sick Leave Policy to deal with this emergency rule.

Sample Sick Leave Policy:

On March 10, 2020, the state of Colorado was declared to be in a state of emergency due to the coronavirus. While that the state of emergency is in place, employees may take up to four (4) paid sick days if they are exhibiting flu-like symptoms and being tested for coronavirus. This paid sick leave is not to be used for vacation or personal time off. After the four paid sick days are exhausted, employees may take unpaid sick leave or any available paid-time-off until they are cleared for work by a physician. Each employee who utilizes sick leave under this section will need to present a release from a physician upon returning to work. Employees will not be compensated for unused sick days when they leave their employment.


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