**Content updated on March 26, 2020 to provide a link to the U.S. Department of Labor model poster released on March 25, 2020 and to update the new effective date of the FFCRA.**

In the wake of the COVID-19 pandemic, employers now have new emergency paid leave obligations for employees in Colorado and across the United States.

On March 18, 2020, a new federal law, the Families First Coronavirus Response Act, was enacted to provide paid sick leave and family leave to employees in the U.S. impacted by COVID-19.  Last week, the Colorado Department of Labor and Employment adopted emergency rules, the Colorado Health Emergency Leave with Pay Rules, to provide paid sick leave for employees in specific industries in Colorado.

A summary of the new federal law and the Colorado emergency rules is outlined below:

What is the Families First Coronavirus Response Act (FFCRA)?

The federal FFCRA is 112-pages in total.  Among other things, it obligates certain employers to provide paid sick leave (Emergency Sick Leave) and family leave benefits (Emergency Family Leave) for employees impacted by COVID-19.

When do employers have to comply with the FFCRA?

The FFCRA was passed by Congress and signed into law on March 18, 2020.  It is effective on April 1, 2020 and continues through December 31, 2020.  Thus, employers must comply with the FFCRA by April 1, 2020.

What employers must comply with the FFCRA?

Private employers with less than 500 employees (and some governmental entities) are covered under the FFCRA.  Healthcare providers, emergency responders and companies with less than 50 employees (who are having viability issues) may be exempted by forthcoming regulations from the U.S. Department of Labor.  The law also allows employers to exclude employees who are health care providers or emergency responders.

What are the Colorado Health Emergency Leave with Pay (“Colorado HELP”) Rules?

The Colorado HELP Rules require employers in certain industries to provide paid sick leave to employees with flu-like symptoms who are being tested for COVID-19.

When do Colorado employers have to comply with the Colorado HELP Rules?

The Colorado HELP Rules were adopted and effective on March 11, 2020.  Colorado employers must comply with the Colorado HELP Rules immediately.  The Rules will remain in effect for 30 days or the duration of the State of Disaster Emergency declared by the Governor up to a maximum of 120 days, whichever is greater.

What employers must comply with the Colorado HELP Rules?

Employers in Colorado in the following industries must comply:

  • 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); and
  • Nursing homes or community living facilities.

FFCRA Emergency Sick Leave Requirements

How much FFCRA Emergency Sick Leave must be provided and for what reasons?

For full-time employees, employers must provide 80 hours of paid sick leave.  For part-time employees, employers must provide the average number of hours worked by the employee during a two-week period.  Emergency Sick Leave must be provided if an employee is:

  • Under governmental or healthcare provider orders to quarantine;
  • Experiencing COVID-19 symptoms and seeking a medical diagnosis;
  • Caring for an individual that falls under one of the first two categories above;
  • Caring for a child whose school is closed or child care provider is unavailable, both due to COVID-19; or
  • Suffering a substantially similar qualifying condition specified by the Department of Health and Human Services.

Do employees have to be employed for a certain period of time or have worked a certain number of hours to be eligible for FFCRA Emergency Sick Leave?

No, Emergency Sick Leave must be available immediately regardless of how long the employee has been employed.

How is FFCRA Emergency Sick Leave paid?

Employees must be paid their regular rate of pay or applicable minimum wage (whichever is greater) if taking leave for themselves, with a cap of $511/day and $5,110 total.  Employees caring for family members must be paid an amount equal to 2/3 of their regular rate of pay or applicable minimum wage (whichever is greater), with a cap of $200/day and $2,000 total.

Can employers require employees to provide reasonable notice of the need to take FFCRA Emergency Sick Leave?

For the first day of Emergency Sick Leave, no.  However, after the first day of Emergency Sick Leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving paid sick time.

Do employers have to pay out unused FFCRA Emergency Sick Leave upon termination of employment?

No, Emergency Sick Leave does not carry over from year to year and it is not required to be paid out upon separation from employment.

Are there any required employer notices for FFCRA Emergency Sick Leave?

Yes, employers are required to post an Emergency Sick Leave notice in a conspicuous place, such as a break room.  A model notice was issued by the U.S. Department of Labor on March 25, 2020.  For a PDF copy click here.

If an employer already provides a generous paid time off policy with paid leave exceeding the requirements for Emergency Sick Leave, do they still have to provide FFCRA Emergency Sick Leave?

Yes, employers with generous PTO policies still must provide the additional Emergency Sick Leave.  Employers also cannot require employees to use other paid leave before providing Emergency Sick Leave.

Can an employer require an employee to find a replacement before allowing the employee to take FFCRA Emergency Sick Leave?

No, an employer may not require an employee to find a replacement employee during the time period in which the employee is taking Emergency Sick Leave.  Employers also cannot discharge, discipline or discriminate against employees for requesting, taking or complaining about Emergency Sick Leave.

What else do employers need to be aware of regarding FFCRA Emergency Sick Leave?

Employers are not subject to the 6.2% social security payroll tax for Emergency Sick Leave wages.  Employers also can claim a tax credit on a quarterly basis equal to 100% of the Emergency Sick Leave wages paid.

Colorado HELP Paid Sick Leave Requirements

How much Colorado HELP Paid Sick Leave must be provided and for what reasons?

Covered employers in Colorado must provide up to 4 days of paid sick leave to an employee: a) with flu-like symptoms, and b) who is being tested for COVID-19.

Do employees have to be employed for a certain period of time or have worked a certain number of hours to be eligible for Colorado HELP Paid Sick Leave?

No, any new or existing employee of a covered employer is eligible for Colorado’s emergency paid sick leave.

How is Colorado HELP Sick Leave paid?

An employee must be paid at their regular rate of pay for the employee’s regularly worked hours. If an employee’s rate of pay or hours varied before the leave, the pay rate is the amount of the employee’s average daily pay for the preceding month.  If an employee is newly hired, the pay rate should be based on the amount of hours the new employee is expected to work.

Can employers require employees to provide reasonable notice of the need to take Colorado HELP Paid Sick Leave?

Yes, but only where it is feasible for the employee to give notice.  Unless they are too ill to communicate, an employee must give notice of their absence as soon as possible and notice of taking a COVID-19 test within 24 hours of being prescribed the test.

Can an employer require documentation from the employee to support the need for Colorado HELP Paid Sick Leave?

Yes, an employer may require the employee to submit documentation from a health care provider who prescribed the COVID-19 test. Generally, documentation requested by an employer must be provided by the employee at the end of his or her illness period or upon the employee’s return to work, whichever is sooner.

If an employer already provides a generous paid time off policy with paid leave exceeding the requirements for Colorado HELP Paid Sick Leave, do they still have to provide Colorado HELP Paid Sick Leave?

No, unless the employee has already exhausted all other paid leave.  If an employee has already exhausted paid leave benefits allotted by the employer, but then has flu-like symptoms and is being tested for COVID-19, he or she is entitled to the additional paid sick days under the Colorado HELP Rules.

FFCRA Emergency Family Leave Requirements

How much FFCRA Emergency Family Leave must be provided and for what reasons?

Covered employers must provide up to 12 weeks of Emergency Family Leave for an employee who is unable to work or telework because his or her child’s school is closed or daycare provider is unavailable, both due to a public health emergency such as COVID-19.

Do employees have to be employed for a certain period of time or have worked a certain number of hours to be eligible for FFCRA Emergency Family Leave?

Yes, employees must be employed for at least 30 calendar days, although no minimum number of hours worked is required.  Full-time, part-time and temporary employees are thus eligible for Emergency Family Leave.

How is FFCRA Emergency Family Leave paid?

The first 10 days of Emergency Family Leave may be unpaid, but the employee can elect to use accrued paid time off (e.g., vacation, personal, sick, etc.).  The employee may also utilize Emergency Paid Sick Leave (caring for a family member) for the first 10 days of leave, as described above.  After the first 10 days, the employer is required to provide paid leave for the remaining leave of up to 12 weeks in an amount equal to at least 2/3 of an employee’s regular’s rate of pay, with a cap of $200/day and $10,000 total.

Can employers require employees to provide reasonable notice of the need to take FFCRA Emergency Family Leave?

Yes, but only where the need for leave is foreseeable.

Is job restoration required for employees returning from FFCRA Emergency Family Leave?

Yes, employees are generally entitled to be restored to their position or an equivalent one upon returning from leave.  However, if an employer has less than 25 employees, the employer does not have to return the employee to their same or similar position if: a) the position was eliminated due to economic or operating conditions caused by COVID-19; b) the employer made reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced; and c) the employer makes reasonable efforts within the 1 year period following the employee’s 12-week leave period to contact the employee if an equivalent position becomes available.

What else do employers need to be aware of regarding FFCRA Emergency Family Leave?

Employers are not subject to the 6.2% social security payroll tax for Emergency Family Leave wages.  Employers can also claim a tax credit on a quarterly basis equal to 100% of the Emergency Family Leave wages paid.

Note:  This guidance does not provide information directly related to FFCRA tax issues for employers or employees. Please consult your tax advisor for such information.