|Update on Colorado Health Emergency Leave with Pay|
On April 26, 2020, Colorado Governor Jared Polis issued the “Safer at Home” Executive Order, D 2020 044, to take effect on April 27, 2020. Among other things, this Order directed the Colorado Department of Labor to create emergency temporary rules amending the Colorado Health Emergency Leave with Pay Rules, originally adopted on March 11, 2020.
Pursuant to the Order and Governor Polis’s recommendations, the Department of Labor subsequently amended the Colorado Health Emergency Leave with Pay Rules to include the following notable changes:
· Although the initial version of the Rules narrowly limited the industries that must provide paid sick leave, the most recent version greatly expands coverage. Specifically, the Rules apply to the following industries: leisure and hospitality, food services, retail establishments, real estate sales and leasing, offices and office work, elective health services (including medical, dental, or other health services), personal care services (defined as hair, beauty, spas, massage, tattoos, pet care, or substantially similar services), food and beverage manufacturing, child care, education at all levels, home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), nursing homes, and community living facilities. Employers in these industries are covered regardless of their size.
· The covered employers must provide up to two weeks (up to a maximum of 80 hours) of paid sick leave at two-thirds of the employee’s regular rate for an employee: (A) with flu-like or respiratory illness symptoms and (B) who is (1) being tested for COVID-19 or (2) under instructions from a health care provider or authorized government official to quarantine or isolate due to risk of having COVID-19.
· Regular rate for purposes of determining a non-exempt employee’s compensation during leave is defined under Colorado’s COMPS Order, which includes “all compensation paid to an employee, including set hourly rates, shift differentials, minimum wage tip credits, nondiscretionary bonuses, production bonuses, and commissions used for calculating hourly overtime rates for non-exempt employees.”
· While the new Rules indicate that an employer may ask for documentation that is consistent with the documentation requirements of the federal Family and Medical Leave Act, the Rule expressly explains that the documentation may be in the form of the employee’s own written statement that need not be notarized or be in any particular form, which appears to be more lenient than documentation rules under the FMLA. In addition, employers may only require documentation upon an employee’s return from leave.
· If an employer is required to provide leave under federal law (e.g., the Families First Coronavirus Relief Act), the employer must follow the law that gives the employee the greatest benefits and protections.
So, employers who were not previously covered by the Colorado Health Emergency Leave with Pay Rules are now covered, and covered employers must provide up to two weeks of pay (as opposed to four days under the original Rules). These Rules could change again depending on a variety of factors, including the effectiveness of social distancing under the Safer at Home Order.
The Employer’s Advisory strives to stay apprised of the ever-changing laws regarding COVID-19 and how they may affect employers and update its readers accordingly. Please keep an eye out for additional updates.