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Commentary and Analysis Regarding Colorado Law

ALERT: Governor Polis Signs Executive Order Regarding Paid Sick Leave

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Lyons Gaddis COVID-19 Alert

This Alert is one in a collection of articles created by Lyons Gaddis in our effort to get important information to our clients regarding the effect of the novel coronavirus (COVID-19) outbreak in the United States.  This Alert focuses on Colorado Governor Jared Polis’ recent Executive Order regarding paid sick leave.

March 24, 2020
ALERT: Governor Polis Signs Executive Order Regarding Paid Sick Leave
by 
Brian Allard, Associate

In response to the global pandemic of the novel coronavirus, termed COVID-19, on March 10, 2020, Governor Jared Polis declared a State of Disaster Emergency in the state of Colorado. In an effort to further the goals of the State of Disaster Emergency, the next day, on March 11, 2020, Governor Jared Polis issued an Executive Order that, in part, directed the Colorado Department of Labor and Employment (“CDLE”) to engage in emergency rulemaking to ensure that certain employees received paid sick leave, if they were experiencing flu like symptoms. Employees in the following industries were included in the executive order: leisure and hospitality, food services, child care. education at all levels (including but not limited to cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), operating a nursing home, or operating a community living facility.

The Order also left open the possibility for the CDLE to look into options for additional supports and wage replacements for those that test positive and lack access to paid leave. It provided that state employees that are absent from work due to COVID-19-like symptoms for three or more consecutive days did not have to provide a medical certificate form. The Executive Order expires thirty days from day of its signing, on March 11, 2020, unless extended by further executive order.

On the same days as Governor Polis’ Executive Order, the CDLE issued emergency temporary rules, termed the Colorado Health Emergency Leave with Pay (“Colorado HELP”) Rules, 7 CCR 1103-10. The temporary rules were to remain in effect for the longer of 30 days from adoption of the rules, or the duration of the State of Disaster Emergency Declared by Governor Polis, up to a maximum of 120 days since the temporary rules were enacted.

The temporary rules require employers engaged in the field of leisure and hospitality, food services, child care, education at all levels (including but not limited to cafeterias and transportation to, from, and on campuses), home health care (working with elderly, disabled, ill, or otherwise high-risk individuals), operating a nursing home, or operating a community living facility provide up to four days of paid sick leave to any employee that has flu-like symptoms or who is being tested for COVID-19. If the employee tests negative for COVID-19 the paid sick leave ends.

The rules do not require employers to provide additional days of paid sick leave if they already offer such benefit to its employees. However, the rule does require the employers provide paid sick leave to employees that have exhausted their employers’ paid sick leave and have flu-like symptoms and are being tested for COVID-19.

Employers subject to these rules are to pay employees at their regular rate of pay for their regularly worked hours. If the employee’s hours varied, prior to taking leave, the employer must pay the employee at their average daily pay for the preceding month. An employer may not terminate an employee for their failure to provide documentation of an illness covered by the rules, during the employee’s illness. 

It is expected, over the coming weeks and months, as COVID-19 spreads throughout the state of Colorado, other executive orders will be signed, which will have impacts on public and private entities. Stay tuned for further information as this unprecedented global pandemic, and the government’s response, unfolds.

Attorneys in the Labor and Employment Group at Lyons Gaddis are available to advise you in relation to this Executive Order other COVID-19 related matters impacting your current and future business operations.

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