Legal Updates – May 2020


Colorado Department of Labor Issues Guidance on Employees Concerned About Returning to the Workplace.

On April 27, 2020, Colorado Governor Jared Polis implemented the “Safer-at-Home” order, which lifted some of the restrictions previously in place, including allowing some business to reopen. However, with workplaces reopening, not every employee feels comfortable or safe returning to work.

Governor Polis ordered employers to provide accommodation to workers with children or workers who live with vulnerable individuals.[1] Among the guidance, Governor Polis ordered that employers must offer work-from-home options and flexible schedules to accommodate those employees, if the work can be done remotely. Employees that cannot return to work and cannot work remotely may still access leave granted under the Families First Coronavirus Response Act.

Furthermore, Governor Polis ordered the Colorado Civil Rights Division (CCRD) to issue guidance for employers with employees who are not comfortable returning to work. The CCRD says that employers cannot compel an employee to return to work if the employee is (1) part of a vulnerable population; and (2) the objective risks of the workplace put the employee at risk for COVID-19, including work which requires close proximity to others. Additionally, individuals may still claim unemployment if they resign or otherwise refuse a suitable offer of employment based on the reasons stated above.

Vulnerable individuals include:

  • Those over age 65;
  • Those with chronic lung disease or “moderate or severe asthma;”
  • Those with “serious heart conditions”;
  • Those who are immunocompromised;
  • Pregnant women; and
  • Individuals determined to be high risk by a licensed healthcare provider.

Colorado HELP Rules:

Also on April 27, 2020, the Colorado HELP [Health Emergency Leave with Pay] rules expanded coverage to include certain employers to allow paid leave its employees.[2] Under the HELP rules, employers, regardless of size, must provide from four full days’ pay to two weeks (up to 80 hours) at 2/3 pay to those with “flu-like or respiratory illness symptoms who are either: (1) being tested for COVID-19; or (2) under instructions from a health care provider or authorized government official to quarantine or isolate due to a risk of having COVID-19.” Any employer requiring work from an employee entitled to this leave will have violated the HELP rules.

Employers under the expanded coverage include these industries:

  • Retail establishments;
  • Real estate sales and leasing;
  • Offices and office work;
  • Elective health services; and
  • Personal care services, including hair, beauty, spas, massage, tattoos, pet care, or substantially similar services.

Prior industries included:

  • Leisure and hospitality;
  • Food and beverage manufacturing;
  • Food services;
  • Childcare;
  • Education, including transportation, food service, and related work with educational establishments;
  • Home health, if working with elderly, disabled, ill, or otherwise high-risk individuals;
  • Nursing homes; and
  • Community living facilities.

Wage and Hour Issues When Returning to Work:

Among the myriad of concerns for employers reopening their doors, employers must also be mindful about complying with Fair Labor Standards Act requirements.[3] Although employers may be bringing back employees at fewer hours than usual, employers must still pay exempt employees their full salary unless they first communicate a reduction in pay. Employers should predict the number of hours an employee will work moving forward and set a new salary ahead of time. If an employer does not provide this notice or attempts to pay an employee on an hourly or daily basis, they may risk losing the employee’s exempt status.

Additionally, employers must be cognizant that a reduction or change in responsibilities for an employee may disqualify that employee from their exempt status. An exempt employee performing too much non-exempt work to accommodate for short staffing may lose their nonexempt status and be entitled in overtime compensation.

This includes commission-based and outside sales exempt employees.[4] Employees that see their sales reduced to less than 50% of their income could lose their exemption status and qualify for overtime compensation. Outside sales employees who are performing the majority of their work from home may also lose their exempt status.

For more information on navigating these workplace concerns, please reach out to your attorney or call us at ILG.