On March 10, 2020, Colorado Gov. Jared Polis declared a State of Disaster Emergency in response to the COVID-19 pandemic. The Governor directed that immediate rulemaking be initiated to provide employees in certain industries paid sick leave for possible COVID-19 testing. The next day, the Colorado Department of Labor and Employment published the Colorado Health Emergency Leave with Pay Rules. These emergency rules became effective on March 11, 2020, and remain in effect for the longer of (a) 30 days after adoption (in other words, April 10, 2020); or (b) the duration of the State of Disaster Emergency, up to a maximum of 120 days after adoption of the emergency rules (in other words, up to July 9, 2020).

Which industries are covered?

The emergency rules require employers in the following fields to provide up to four days of paid sick leave for an employee with flu-like symptoms who is being tested for COVID-19:

  • Leisure and hospitality;
  • Food services;
  • Child care;
  • Education at all levels (including related services, 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);
  • Nursing homes; and
  • Community living facilities

When does the paid leave end?

The paid leave ends if and/or when an employee receives a negative COVID-19 test result. Moreover, the department stated in a set of FAQs that the four days are four “calendar” days, not four “working” days. For example, if an employee falls ill on a Thursday and makes plans to get tested, the four days end on Sunday. Additionally, the employee gets paid only for those days he or she actually would have worked.

What if an employer already offers paid leave?

The rules expressly state that if an employer already offers at least four days of paid leave, no additional days need to be offered. However, an employee who has already exhausted his or her paid leave allotted by the employer, but then has flu-like symptoms and is being tested for COVID-19, is entitled to the additional paid sick days.

How much is the employee to be paid?

During this leave, the employee shall be paid his or her regular rate of pay for the employer’s regularly worked hours. To the extent that the employee’s rate of pay or hours worked varied before the absence, the employee shall be paid his or her average daily pay for the preceding month.

Can an employer require an employee seeking leave to submit documentation?

An employer may, if it wants, require an employee to submit the following documentation to support the employee’s need to take leave:

  • From the health care provider who prescribed the COVID-19 test:
    • Any document(s) 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 the date of that prescription; or
    • If documents showing all of the above are 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:
    • Any document(s) 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 of the test; or
    • If documents showing all of the above are not available to the employee, whatever documents are available plus the employee’s written affirmation stating whichever of the above items are not available.

The documents do not need to be in any particular form or sworn as affidavits. The documents can be duplicates rather than originals. An employee can redact any personal or medical information that is not part of the above-requested information.

Is there an employee notice requirement?

Unless they are too ill to communicate, employees must: (a) give notice of their absence as soon as possible; (b) give notice of getting a COVID-19 test within 24 hours of being prescribed the test; and (c) provide any documentation that the employer requests by the sooner of (i) the end of their illness or (ii) their return to work.

Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.

Photo of Arslan Sheikh Arslan Sheikh

Arslan Sheikh is an associate in the firm’s Columbus office and practices in the Labor & Employment group. His practice includes a host of topics, including employment discrimination, wage and hour, and workplace safety. Arslan has experience counseling clients on compliance with local…

Arslan Sheikh is an associate in the firm’s Columbus office and practices in the Labor & Employment group. His practice includes a host of topics, including employment discrimination, wage and hour, and workplace safety. Arslan has experience counseling clients on compliance with local, state and federal laws.