New FAQs Clarify Colorado Emergency Paid Sick Leave Rules

UPDATE: The HELP Rules expired after July 14, 2020, and, on July 15, 2020, were replaced by the Healthy Families & Workplaces Act (HFWA), which, in part, requires employers to notify employees of emergency paid sick leave (EPSL) the HFWA requires from July 15 through December 31, 2020 (poster available in English & Spanish). Monitor for forthcoming additional information concerning the HFWA's EPSL requirements. 

NOTE: Please consult our article summarizing subsequent developments on the Colorado HELP Rules. Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.

The Colorado Department of Labor and Employment released new FAQs to clarify requirements under the Colorado Health Emergency Leave with Pay (“Colorado HELP”) Rules, issued on March 11, 2020, that require certain employers to provide paid sick leave for employees with flu-like symptoms who are being tested for COVID-19. The FAQs define covered industries, address what it means to "engage" in a covered industry, discuss employee notice and documentation requirements, and outline employer payment obligations.

Covered Industries: The HELP Rules apply to employers in leisure and hospitality, food services, child care, education at all levels (including related services such as cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), nursing homes, and community living facilities. For each industry or workplace, the FAQs provide a definition and examples. Below we provide a basic summary of the standard and some examples. Concerned employers should consult the FAQs for complete information:

  • Leisure & Hospitality: Arts, entertainment, and recreation industries, accommodations, and food services (e.g., museums, golf courses, hotels).
  • Food Services: Places that prepare meals, snacks, and beverages to customers for immediate on- and off-premises consumption (e.g., caterers, restaurants, coffee shops)
  • Child Care: Establishments primarily engaged in providing day care of infants or children (e.g., nursery schools, preschools, child day care).
  • Education: Public and private establishments that provide teaching, instruction, and/or training (e.g., colleges, trade schools, lessons, tutoring, and exam preparation).
  • Community Living Facilities: Establishments providing residential and personal care services with on-site nursing care facilities for elderly and other persons who are unable to fully care for themselves and/or do not desire to live independently (e.g., assisted living facilities, rest homes without nursing care).
  • Nursing Homes: Establishments providing inpatient nursing and rehabilitative services, generally for an extended duration to individuals requiring nursing care, with a permanent core staff providing nursing and similar continuous personal care services (e.g., convalescent homes, rest homes with nursing care, inpatient care hospices).
  • Home Health: Companies providing skilled medical, nursing, and other health-related services in the home, along with a range of services (e.g., home health care agencies, visiting nurse associations, in-home hospice care services).

What It Means to "Engage" in an Industry: The HELP Rules cover any employer "engaged in the field of" the above industries. For employers engaged in multiple fields, the FAQs clarify that the HELP Rules apply only to employees working in a covered industry. For example, if a business has a cafeteria (food services), the rules apply only to food services employees of that business.

Requesting Leave: The FAQs explain that, unless too ill to communicate, employees must give notice of their absence as soon as possible, and give notice of getting a COVID-19 test within 24 hours of being prescribed the test.

Documenting Leave: Per the FAQs, at their discretion, employers can require employees to submit the following documentation to support their need for paid sick leave under the HELP Rules:

  • From the health care provider who prescribed the COVID-19 test:
    • Documentation sufficient to show the health care provider's name, contact information, and type (family doctor, medical clinic, hospital, etc.), the prescription for a COVID-19 test and date thereof; or, if this information is not available to the employee:
    • Whatever documents are available plus the employee's written affirmation stating whichever of the above items are not available.
  • From the provider of the COVID-19 test:
    • Documentation sufficient to show the provider's name, contact information, and type (lab, medical clinic, hospital, etc.), that a COVID-19 test was performed and the date thereof; or, if this information is not available to the employee:
    • Whatever documents are available plus the employee's written affirmation stating whichever of the above items are not available.

Documentation need not be in any particular form and/or sworn as affidavits, and can be duplicates rather than originals. An employee can redact any personal or medical information that is not part of the above-requested information.

Employees must provide any documentation the employer requests by the end of their illness or their return to work date, whichever is sooner.

Paying Leave: Under the HELP Rules, employers must provide up to four paid sick leave days for employees with flu-like symptoms who are being tested for COVID-19. Per the FAQs, this is a maximum of four calendar – not necessarily work – days. The Department provides an example: An employee falls ill on a Thursday and makes plans to get tested. The maximum payment period is Thursday through Sunday. The employee is paid for days during this period they would have actually worked.

Because the HELP Rules took effect immediately on March 11, 2020, employers should review the FAQs (and rules) to determine whether the rules apply to them and their employees. Additionally, employers should monitor the FAQ webpage for further updates.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.