This news is current as of March 20, 2020.
These are difficult times for all of us. If you’ve come to this website, you are worried about how to keep your job and maintain your income and benefits. Or you have been fired or laid off and don’t know where to turn. We can’t answer every question, but hopefully what follows will provide some guidance. This is a tricky and fast-moving moving area of the law. Please contact us if you believe your rights have been violated. Although our physical office is closed, we are working remotely to help serve our clients and those seeking consultation.
OVERVIEW
Colorado does not require employers to provide employees with sick leave, paid or unpaid. Troubling, but true. As discussed immediately below, however, there are certain laws that may protect you. Most recently, Congress passed and the President signed into law the Families First Coronavirus Response Act providing short-term relief. Governor Polis and the Colorado Department of Labor and Employment (CDLE) passed short-term emergency measures that provide some (again short-term) relief. There are also some laws that may protect you from being fired if you, or a family member, gets sick and needs to take time off work. If you have been laid off, we briefly explain how to file for unemployment. At the end of this article, we briefly discuss independent contractors. We conclude with contact information for other sources of information.
RECENT LEGISLATION
Federal — Families First Coronavirus Response Act, HR 6201 (signed into law on March 18, 2020)
On March 18, the President signed the Families First Coronavirus Response Act (FFCR Act), HR 6201. The Act is to take effect April 2, 2020.
The FFCR Act provides for two types of paid leave; (1) sick leave for the employee; and (2) sick leave to care for a child with COVID-19.
(1) The FFCR Act requires employers with between 50 and 500 employees to provide up to 80 hours of paid sick leave if employees are unable to work because they are subject to quarantine or isolation, are experiencing symptoms of COVID–19, are caring for someone who is in quarantine or isolation and/or have children in schools that have closed. There does not appear to be any tenure requirement – i.e., employees are covered regardless of how long that employee had been employed. An employer cannot require employees to find a replacement worker for themselves or require them to use other paid time off. (Employers themselves will receive tax credits to offset the costs of providing this paid leave.)
For those who are self-employed, there will be a tax credit equivalent to the sick leave amount.
(2) The Act also extends the Family Medical Leave Act (FMLA). The FMLA requires certain employers to provide 12 weeks of unpaid, protected leave for an employee to care for their own, or a family member’s, “serious medical condition.” The FMLA has strict requirements: an employee must have been employed for at least a year (and at least 1,250 hours) and the employer had at least 50 employees within 75 miles of the work location.
The FFCR Act extends the FMLA in the context of COVID-19. The FFCR Act requires an employer to pay up to three months of leave, equivalent to no less than two-thirds of the employees’ pay. It applies when an employee is unable to work (or telework) because the employee must care for a child under the age of 18 whose daycare, elementary or high school has been closed due to coronavirus. The first 10 days are unpaid. Employees can opt (but not be required) to substitute other paid leave. The remaining 10 weeks of FMLA is paid at 2/3rds of the employee’s regular pay up to $200 per day and $10,000 total aggregate. This coronavirus-specific FMLA leave will be available to employees who have been employed for at least 30 days (an extension beyond the FMLA). The leave is “protected,” meaning it is against the law to fire or retaliate against you for requesting and/or taking leave under the FFCR.
A qualified employee can still trigger the protections of the FMLA (unpaid, protected leave) for that employee’s own condition if the employee becomes sufficiently sick with the virus. Thus, if you believe you or a family member have the virus and qualify for FMLA and/or FFCR, inform your employer. Your employer may require you to fill out medical forms.
State — Recent Emergency Act, 7 CCR 1103-10 (Adopted March 11, 2020)
On March 11, 2020, the CDLE published emergency rules which temporarily require employers in certain industries to provide up to four days of paid sick leave to employees with flu-like symptoms while awaiting COVID-19 testing. The emergency rules are in place for 30 days, or longer if the state of emergency declared by the Governor continues.
If you are in one of the protected industries covered by the rule (see below), your employer must provide up to four days of paid sick leave if you have flu-like symptoms and seek testing. If you test negative, the paid leave ends. At this point in time, if you test positive, your paid leave is not extended past the four days.
If your employer already provides the paid leave necessary to meet the requirements, then the employer does not need to provide additional leave with one exception: if you have already used up your paid leave, your employer must provide you with additional paid sick leave.
The protected industries covered by the rule include:
Leisure and Hospitality
Food Services
Child care
Education, including transportation, food service, and related work at educational establishments
Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals
Nursing homes
Community living facilities
If you work in one of these industries, you are protected regardless of pay rate or method (hourly, weekly, piece rate, etc.).
You must provide notice of your need for sick leave and intent to be tested. If you are too ill to communicate, you must give notice as soon as possible. Your employer can require you to provide support.
If your employer refuses to comply, you can file a complaint with the CDLE on its website, https://www.colorado.gov/pacific/cdle/complaint-forms.
At this time, the Act does not provide for paid sick leave beyond the four days…even if an employee tests positive! However, as discussed above, the employee can rely on the FFCR and FMLA.
OTHER LAWS THAT MAY PROTECT YOU
Occupational Safety and Health Act of 1970
Under the Occupational Safety and Health Act of 1970 (OSHA), employers are responsible for providing safe and healthful workplaces for their employees. Thus, employers who make workers report to work with coronavirus may be violating OSHA. On March 14, 2020, OSHA published a “guidance” for employers to follow. However, the agency clarified that the guidance is not a standard or regulation and creates no new legal obligations. If you suspect that you or another worker may have the virus, you should alert your employer and specifically mention your concerns about workplace safety and the OSHA requirement of a safe workplace. Required protections may include discontinuing employee travel, requiring sick workers to work from home, requiring physical distance between employees, and respirators. You can file a complaint with OSHA on its website.
Violation of Colorado Public Policy
Colorado has common law protections that may apply. Governor Polis has publicly announced that protecting the public, including workers, from COVID-19 is an important policy of the state. Included in the policy necessarily is that workers who are infected must remain home to protect other workers and the public. Thus, if you notified your employer that you need sick leave to get tested for the virus or to recuperate while you have the virus, this may protect you from termination.
Disability Discrimination under the Americans with Disability Act and the Colorado Anti-Discrimination Act:
It is unclear whether COVID-19 will be considered a “disability” as defined by the Americans with Disability Act (ADA) and the Colorado Anti-Discrimination Act (CADA). However, if you are unfortunate enough to end up with a chronic condition from the virus, you may be protected under state and federal disability discrimination laws. In addition, many disabilities (lung and heart disease, diabetes, for example) may make you more susceptible to succumbing to COVID-19. Thus, if you have a disability and you believe you may be susceptible to the virus, you should ask your employer for leave to work from home as an accommodation for your disability.
UNEMPLOYMENT BENEFITS
Unemployment benefits are available to employees people who lose their jobs or suffer a significant reduction in hours or pay through “no fault of their own.” If your employment has been terminated, file for unemployment at coloradoui.gov/fileaclaim. Similarly, if you have not been laid off, but your hours were cut, you may qualify. You can receive benefits if you’re working fewer than 32 hours and earning less than 55 percent of your usual wage. You will only qualify for a partial benefit. As the law currently stands, you don’t qualify for unemployment if you are on unpaid sick leave or have to stay at home to care for a child. We understand the state is working on emergency rules to cover this situation, so apply anyway.
Unemployment can replace about 55 percent of your average weekly wages, with a maximum benefit of roughly $600 per week. An estimator is available online. The benefit can last up to 26 weeks, but that period has been extended in previous crises.
It typically takes four to six weeks from application to first payment. Payments arrive by debit card or by direct bank deposit. State officials are trying to speed things up.
You should apply online. The system crashed last week with the huge surge in applications, so be patient and save your application frequently as you type.
As the law currently stands, you are required to continue searching for work while you receive unemployment benefits. We understand that the state is looking at changing this requirement in the short term, given that entire sectors of the economy are now shut down.
For now, once you qualify for unemployment benefits, keep an eye out for communications from CDLE about those requirements.
NOTE ON INDEPENDENT CONTRACTORS
Unfortunately, the foregoing rules apply for employers/employees, only. Thus, if you are an independent contractor, you cannot rely on the Emergency Act, FFCR Act, FMLA, OSHA rules, and the ADA. (CADA does apply to independent contractors.) However, Under Colorado Law, an individual is presumed to be an employee, not an independent contractor. Thus, the employer has the burden to prove that the individual is free from control and direction – both under any applicable contract and in actual work performed. So carefully assess whether you really are an independent contractor before you conclude that the foregoing laws do not protect you.
OTHER SOURCES OF INFORMATION
We encourage you to visit the CDLE for information on various agencies that can assist you, including state and local agencies. https://www.colorado.gov/pacific/cdle/more-assistance.
Check the Colorado Department of Public Health and Environment’s (CDPHE) website for the most up-to-date information and additional resources. It is updated daily. CO HELP: COVID-19 hotline: 303-389-1687 or 1-877-462-2911, https://www.colorado.gov/pacific/cdphe/2019-novel-coronavirus. You can also follow them on Facebook, LinkedIn, and Twitter
Colorado’s call line for general questions about COVID-19, provides answers in many languages including English, Spanish (Español), Mandarin (普通话) and more: 303-389-1687 or 1-877-462-2911.
Colorado Department of Public Health and Environment (CDHPE) www.cdphe.state.co.us
Centers for Disease Control and Prevention (CDC), www.cdc.gov
COVID-19 link: https://www.cdc.gov/coronavirus/2019-ncov/