On March 11, 2020, the Colorado Department of Labor and Employment issued Colorado Health Emergency Leave with Pay (HELP) Rules that require employers in certain industries to provide paid sick leave for employees exhibiting flu-like symptoms and who are being tested for COVID-19. The Rules, effective immediately, will remain in effect for at least 30 days, and up to 120 days if the declared state of emergency continues.

The HELP Rules cover employers in the following industries:

• Leisure and hospitality;
• Food services;
• Child care;
• Education at all levels and related services, including but not limited to cafeterias and campus transportation;
• Home health care (working with elderly, disabled, ill, or other high-risk individuals); and
• Nursing homes or community living facilities.

Covered employers must provide up to four days of paid sick leave to employees exhibiting flu-like symptoms who are being tested for COVID-19. Employers who already provide sufficient paid leave are not required to provide additional paid leave. However, additional leave must be provided to an employee who has exhausted their company paid leave and is being tested for COVID-19 after experiencing flu-like symptoms. The entitlement to leave ends with a negative test result.

Leave must be paid for missed hours regularly worked at the employee’s regular rate. The regular rate calculation includes all forms of wages and compensation. For tip-credit employees, the regular wage is minimum wage. If an employee’s rate or hours varied before the COVID-19 related absence, employers must use the employee’s average daily pay for the preceding month.

Notably, the Rules only cover leave for the four-day testing period. For leave required beyond the testing period, the Rules advise that “[t]o the extent feasible, employees and employers should comply with the procedures of the Family Medical Leave Act (FMLA) to pursue and provide paid sick leave.” The Rules explicitly state that FMLA provisions do not narrow the rights and responsibilities provided by the HELP Rules.

Failure to provide sick leave amounts to a failure to pay wages. Employers may not terminate an employee for an inability to provide documentation during an illness covered by the Rules. The CoDLE will enforce the rules and investigate alleged violations. The Rules also create a private right of action.