Wage and Hour Update: What Colorado Employers Need to Know

By Leni Plimpton

In recent days new rules and regulations have either been instituted or proposed that affect Colorado Employers’ obligations to pay workers. Some of these rules and proposed laws are in response to the global Coronavirus pandemic, and some were simply slated to take effect this month. It is important that every employer review their obligations under these new rules and be aware of the quickly-changing landscape with respect to paid sick leave.

1. Sick Leave

Under the Colorado Health Emergency Leave With Pay Rules, 7 CCR 1103-110, employees in the “leisure and hospitality, food services, child care, education, home health care, nursing home, or community living facility” industries must provide paid sick leave for any employee who has (A) flu like symptoms and (B) is being tested for COVID-19. The leave ends if the employee receives a negative test result.

o   Leave is up to four days, the time needed to get tested for COVID-19.

o   Pay is at the regular rate or, if variable, the average daily pay for the preceding month.

o   Failure to provide this paid leave is deemed a failure to provide wages under the COMPS Order (formerly known as the Minimum Wage Order). The COMPS Order took effect March 16, 2020. Failure to pay wages comes with civil liability, criminal liability, as well as potential administrative fines.

o   The rule is in effect for the duration of the State of Disaster Emergency as declared by Governor Polis, up to a maximum of 120 days.

The House recently Passed the Families First Coronavirus Response Act.

o   The bill is supported by President Trump and heads to the Senate this week.

o   News reports indicate that the bill may get pushback from Republicans concerned about its provisions for paid sick leave.

o   It is not certain what any final bill would look like.

o   As currently written, the bill would require all employers to allow employees to accrue seven days of paid sick leave, and to provide fourteen days of paid sick leave available “immediately” in the event of any public health emergency (including coronavirus).

o   As currently written, provides that the federal government will reimburse small businesses (those with 50 or fewer employees) for the costs of providing the fourteen days of leave used during a public health emergency.

2. Changes in Wage Law

The Colorado Overtime and Minimum Pay Standards Order (“COMPS Order”) took effect on Monday, March 16, 2020. This is unrelated to Coronavirus but all Colorado Employers should be aware of it.

o   The COMPS order replaces Minimum Wage Order #35 and applies to all employers in Colorado.

o   All Industries Included. The biggest change made by the new order is that its provisions now apply to all industries, subject to listed exceptions. The Minimum Wage Orders applied only to four industries (Retail & Service, Commercial Support Service, Food & Beverage, and Health & Medical).

o   Minimum Wage. It is now $12.00 an hour.

o   Overtime. Employers must pay time and a half for hours over 40 in a week, or 12 in a day, or any 12 consecutive hours. Comp time may not be used instead of overtime pay.

o   Meal Periods. Employees must receive uninterrupted, duty-free, 30 minute meal periods for shifts over 5 hours. If the meal is interrupted or has duties, the time must be paid.

o   Rest Periods. Employees must receive compensated 10-minute rest periods for each four hours of work.

o   Exemptions. There are many exemptions which must be carefully analyzed if the rules are to be disregarded with respect to certain employees.

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