Disclaimer: The information provided on this page is for general informational use only and does not constitute legal advice. For legal advice on any matter, including COVID-19, please contact an attorney. While the drafters of this page strive to provide the latest legal information on the COVID-19 pandemic, this page is meant as an overview and not as a complete or exhaustive analysis of the laws discussed herein. Additionally, given the emergent nature of the COVID-19 pandemic—and the ever-changing responses by federal, state, and local governments—we cannot guarantee that the information provided on this page is up to date.
1. If I am elderly, pregnant, or have an underlying medical condition that places me at greater risk of complications related to COVID-19, are there special legal protections that allow me to refuse to go to work in order to reduce my exposure to the virus?
In general, employees are not entitled to take time off of work to avoid exposure to illness. However, if you have an underlying medical condition that places you at a higher risk of infection/serious complications from COVID-19, you may be able to request time off or a telework arrangement as a reasonable accommodation under the Americans with Disabilities Act (“ADA”) and/or the Colorado Anti-Discrimination Act (“CADA”). Your entitlement to a reasonable accommodation will depend on whether your underlying medical condition constitutes a disability under the ADA and/or CADA, and on whether the employer can provide the accommodation without undue hardship.
Although pregnancy itself (as opposed to certain pregnancy-related health conditions and impairments) is not considered a disability under the ADA or CADA, employers may be required to provide pregnant employees with a reasonable accommodation to reduce their exposure to COVID-19, particularly if such accommodations are made available to other, non-pregnant employees.
Unlike pregnant employees and employees with qualifying disabilities, older employees do not have a legal right to seek reasonable accommodations based solely on age, even if age places them at a greater risk of infection/complications from COVID-19.
2. Can I refuse to go to work if I do not fall within a category of persons at greater risk of infection/serious complications from COVID-19?
Maybe. The Occupational Safety and Health Act of 1970 (the “OSH Act”) gives private sector employees the legal right to refuse a work assignment if they have a good faith, reasonable belief that there is a real danger of death or serious injury arising from a hazardous condition in the workplace, the employer has been made aware (to the extent possible) of the hazardous condition and failed to correct it, and there is insufficient time, due to the urgency of the situation, for the Occupational Safety and Health Administration (“OSHA”) to conduct an inspection. In general, employees should be cautious about exercising this right because the circumstances in which it applies are narrow, and it is not yet clear, given the novel and emergent nature of the current pandemic, how the law will apply to employees who refuse to work because of a risk of infection from COVID-19.
However, a number of states, counties, and municipalities, including the state of Colorado, have issued orders prohibiting individuals from leaving their homes for non-essential reasons. Under Colorado law, an employer who fires an employee for not reporting to work in compliance with one of these directives may be liable for wrongful discharge in violation of public policy.
In addition, the federal Emergency Paid Sick Leave Act (“EPSLA”), effective April 1, 2020, requires covered employers (public agencies or private employers with fewer than 500 employees) to provide up to 80 hours of paid sick leave for certain reasons related to the COVID-19 pandemic, such as an employee is subject to “a federal, state, or local quarantine or isolation order related to COVID-19,” or the employee “has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.” The new law prohibits an employer from discharging, disciplining, or otherwise discriminating against an employee who takes leave in accordance with the act.
On March 25, 2020, Colorado Governor Jared Polis issued a state-wide stay-at-home order beginning at 6:00 a.m. on March 26, 2020 and remaining in effect through 11:59 p.m. on April 11, 2020. The full text of the order is available at: https://drive.google.com/file/d/1O1EDCY6-A6QBKxzDImCSF8bBBdOOI3Km/view.
A number of Colorado cities and counties have also issued stay-at-home orders with slightly different exceptions and expiration dates. For a list of cities/counties currently subject to stay-at-home orders, see: https://www.9news.com/article/news/health/coronavirus/colorado-cities-counties-shelter-in-place-orders/73-755635a8-4e68-49dc-8beb-60fac9325726.
3. Can my employer require me to take time off work to get tested for COVID-19?
Yes. If you are experiencing symptoms of COVID-19, an employer may require you to take time off work to recover/get tested for infection. However, because testing may not be available to everyone, the CDC has issued updated guidance providing that individuals with COVID-19 may discontinue home isolation if at least 3 days have passed since recovery (defined as resolution of fever without the use of fever-reducing medical and improvement in other symptoms) and at least 7 days have passed since symptoms first appeared. An employer may require you to provide a doctor’s note certifying that you are able to return to work.
4. If I call in sick, can my employer ask me if I’m experiencing symptoms of COVID-19?
If you are still going to work, an employer may ask you whether you are experiencing symptoms of COVID-19, such as fever, chills, cough, shortness of breath, or sore throat because there is a risk you could infect other employees. If, on the other hand, you are working from home where there is no risk you will expose other employees, an employer is probably not permitted to ask these questions.
5. Can my employer take my temperature before allowing me to begin work?
Under normal circumstances, no. However, in light of current guidance/recommendations from federal, state, and local health authorities related to COVID-19, an employer may take an employee’s body temperature before allowing that employee to begin work.
6. Can my employer prevent me from coming to work if I may have been exposed to COVID-19 but am not exhibiting symptoms?
Probably yes. Employers are entitled to follow guidance from federal, state, and local health authorities to prevent the spread of COVID-19. Accordingly, if you are asymptomatic but fall within a class of persons for whom a federal, state, or local authority is recommending self-isolation/quarantine, your employer may prevent you from coming to work until the period of self-isolation/quarantine has expired.
7. Can my employer prevent me from coming to work if one of my family members may have been exposed to COVID-19?
Probably yes. COVID-19 primarily spreads between individuals in close contact with each other. Accordingly, if you are living in the same quarters as a family member who has been exposed to COVID-19, you, too, may have been exposed, and an employer may be entitled to exclude you from the workplace in accordance with guidance from federal, state, or local public health authorities.
On the other hand, it may be improper for an employer to ask you about your family member’s health status. The Genetic Information Nondiscrimination Act limits an employer’s ability to inquire into an employee’s family medical history.
8. Can my employer tell my coworkers that I have, or am suspected of having, COVID-19?
Generally no. While certain employer officials (such as your direct supervisor) may need to know that you have, or are suspected of having, COVID-19 in order to identify other employees who may have been exposed, an employer must make every effort to limit the number of people who have access to your medical information. Accordingly, a broad workplace disclosure that you have been infected with COVID-19 would generally be prohibited. An employer may, however, notify any employees you have recently been in contact with of their potential exposure to COVID-19, without disclosing that you are the person infected.
9. Can my employer fire me for contracting COVID-19?
Likely no. While your employer can require you to leave the workplace if you have, or are experiencing symptoms of, COVID-19, the EPSLA, effective April 1, 2020, requires covered employers (public agencies or private employers with fewer than 500 employees) to provide an employee with up to 80 hours of paid sick leave if s/he “has been advised by a health provider to self-quarantine due to concerns related to COVID-19” or “ is experiencing symptoms of COVID-19 and seeking a medical diagnosis.” An employer may not discharge, discipline, or discriminate against any employee for taking leave under the EPSLA.
Additionally, severe illness from COVID-19 may qualify as a protected disability under the Americans with Disabilities Act (“ADA”) or the Colorado Anti-Discrimination Act (“CADA”), requiring your employer to work with you to find a reasonable accommodation, such as time off or telework, until your symptoms subside.
10. Can my employer fire me for taking time off to care for a family member who has contracted COVID-19?
Probably no. Assuming you meet basic eligibility requirements under the Family and Medical Leave Act (“FMLA”) (your employer has 50 or more employees, you have worked for your employer for at least 12 months, you have worked at least 1,250 hours during the previous 12 months, and you are requesting time off to care for your spouse, child, or parent), COVID-19 may qualify as a serious health condition entitling you to up to 12 weeks of unpaid, job-protected leave to care for your family member. This means that an employer cannot fire you for taking leave.
Regardless of whether you qualify for leave under the FMLA, you may be entitled to up to 80 hours of paid sick leave under the EPSLA, effective April 1, 2020, to care for your family member if (1) you work for a public agency or an employer with fewer than 500 employees, and (2) your family member has been advised by a health care provider to self-quarantine due to concerns related to COVID-19. An employer may not discharge or otherwise discriminate against you for taking paid sick leave under this law.
11. Can my employer fire me for taking time off to care for my child while her/his/their school is closed due to the COVID-19 pandemic?
No, assuming you (a) work for a public agency or a private employer with fewer than five hundred employees, and (b) have worked for your employer for at least thirty days. Under the Emergency Family and Medical Leave Expansion Act (“EFMLEA”), effective April 1, 2020, covered employees are entitled to up to twelve weeks of leave (a portion of which is paid) if they are unable to work or telework because they need to care for a son or daughter whose school has been closed, or whose child care provider is unavailable, due to a declared public health emergency related to COVID-19. Employers are prohibited from discharging or otherwise retaliating against employees who take leave under the EFMLEA.
If you have not been with your current employer for at least thirty days, you may still be entitled under the EPSLA to up to 80 hours of paid leave to care for a son or daughter who is not in school/child care due to COVID-19. An employer cannot discharge, discipline, or otherwise discriminate against you for taking leave in accordance with these rules.
12. Am I eligible for paid leave if I take time off for reasons related to the COVID-19 pandemic?
Maybe. Three new laws provide eligible Colorado employees with paid leave for reasons related to the COVID-19 pandemic:
- The Emergency Paid Sick Leave Act (“EPSLA”): Generally applies if you work for a public agency or private employer with fewer than 500 employees and are seeking leave beginning on or after April 1, 2020. Note that the Secretary of Labor has the authority to issue regulations (1) excluding health care providers and emergency responders from the EPSLA’s definition of eligible employee, and (2) exempting small businesses with fewer than 50 employees from the requirements of the Act if compliance would jeopardize the viability of the business as a going concern.
- The Emergency Family and Medical Leave Expansion Act (“EFMLEA”): Generally applies if you work for a public agency or private employer with fewer than 500 employees, have worked for your employer for at least 30 calendar days, and are seeking leave beginning on or after April 1, 2020. Note that employers of health care providers and emergency responders may elect to exclude those employees from coverage under the Act. In addition, the Secretary of Labor has the authority to issue regulations (1) excluding health care providers and emergency responders from the EFMLEA’s definition of eligible employee, and (2) exempting small businesses with fewer than 50 employees from the requirements of the Act if compliance would jeopardize the viability of the business as a going concern.
- The Colorado Health Emergency Leave with Pay (“Colorado HELP”) Rules: Generally applies if you (a) work for an employer engaged in the field of leisure and hospitality, food services, child care, education, home health care, or nursing home/community living facility operation, and (b) are seeking leave beginning on or after March 11, 2020.
Your eligibility for paid leave under these laws, the duration of your leave entitlement, and the amount of pay you may be able to recover depend on the reason for which you are requesting leave in the first place. The following table provides a general overview of your entitlement to paid leave under EPSLA, EFMLEA, and Colorado HELP:
NOTE: If you are not eligible for paid leave under the EFMLEA, EPSLA, or the Colorado HELP rules, you may be able to use accrued benefits like PTO for reasons related to COVID-19. You may also be able use PTO during the first ten days of EFMLEA leave (normally unpaid) if you are otherwise ineligible for paid leave under EPSLA. Make sure to consult an attorney to determine how these rules apply to your situation.
13. I was laid off because of COVID-19. Am I eligible for unemployment?
It depends. If you are an employee, and not an independent contractor, you may be eligible for unemployment benefits if you can establish that the loss of your employment was through no fault of your own.*
For more information on how to apply for unemployment benefits in Colorado, please go to Unemployment.
*Note that during this pandemic, independent contractors may be eligible for unemployment benefits under the Coronavirus Aid, Relief, and Economic Security Act (“CARES”) Act, which was signed into law on March 27, 2020. Please refer to the Colorado Department of Labor and Employment website for changes in unemployment benefits due to COVID-19.
14. Can I file for unemployment insurance if my regular hours are reduced because of COVID-19?
It depends. If you are an employee, and not an independent contractor, you may file for unemployment insurance if your regular hours are reduced because of COVID-19.*
*Note that during this pandemic, independent contractors may be eligible for unemployment benefits under the Coronavirus Aid, Relief, and Economic Security Act (“CARES”) Act, which was signed into law on March 27, 2020.
Please refer to the Colorado Department of Labor and Employment website for changes in unemployment benefits due to COVID-19.
15. If I take protected unpaid or paid leave, must my employer restore me to the same position I was in prior to taking leave?
It depends. With a few exceptions, an eligible employee who takes leave under the FMLA because s/he is suffering from a serious health condition or because s/he needs to care for an immediate family member with a serious health condition is entitled to be restored to his/her position or an equivalent position (same pay, benefits, and other terms/conditions of employment) upon returning from leave.
These same rules generally apply if an employee takes leave under the EMFLEA to care for a son or daughter whose school has been closed, or whose child care is unavailable, due to a public health emergency related to COVID-19. However, employers with fewer than 25 employees are not required to restore an employee to the same or equivalent position if (1) the position held by the employee no longer exists due to changes in economic/operating conditions caused by a declared public health emergency related to COVID-19, and (2) the employer is unable to restore the employee to an equivalent position, despite reasonable efforts. If these conditions are met and an employer cannot restore an employee to the same or equivalent position upon his/her return from leave, the employer must make reasonable efforts during the one-year period following the expiration of the employee’s leave period to contact the employee if an equivalent position becomes available.
For employees taking leave under EPSLA, there is no express requirement that employees be restored to the same or equivalent position upon return from leave. However, an employer may not discipline or otherwise discriminate against an employee for taking leave under the EPSLA.
16. Can I retain my employer-provided health insurance if I am laid off because of the COVID-19 pandemic?
It depends. If your employer ends your employment, your employer will no longer provide health insurance for you. However, if you are willing and able to pay your health insurance premiums out of pocket, consider maintaining your prior health insurance through COBRA.
If, instead, your employer is reducing your wages and hours pursuant to an approved work-share program, your employer must maintain your employee benefits, like health insurance. For more information on Colorado’s Work-Share Program, please see: Work-Share Information and Work-Share Information for Employees.
17. Can I retain my employer-provided health insurance if I take leave pursuant to the EFMLEA?
Yes. Your employer must maintain coverage under your group health insurance plan while you are on leave pursuant to the EFMLEA.
18. Where can I find additional information regarding the COVID-19 pandemic and my rights as an employee?
Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. Guidance document from the U.S. Equal Employment Opportunity Commission addressing the rights of employees with disabilities during a pandemic.
COVID-19 “Ask the EEOC Webinar” (March 27, 2020). Webinar from the U.S. Equal Employment Opportunity Commission supplementing the EEOC’s pandemic guidance.
COVID-19 and the American Workplace. Centralized source of information from the U.S. Department of Labor regarding wage-and-hour issues, job-protected leave, and paid sick leave.
Guidance on Preparing Workplaces for COVID-19. Guidance document from the Occupational Safety and Health Administration focusing on work safety issues during the COVID-19 pandemic.
Coronavirus Disease 2019 (COVID-19) – Interim Guidance for Businesses and Employers. Guidance for employers from the Centers for Disease Control and Prevention on preventing workplace exposure to COVID-19 in non-healthcare settings.
Coronavirus Disease 2019 (COVID-19) | CDC. Centralized source of information on the COVID-19 pandemic from the Centers for Disease Control and Prevention.
Information and Resources on Coronavirus. Centralized source of information on unemployment insurance, paid leave, and wage claims in Colorado from the Colorado Department of Labor and Employment.