Paid Sick Leave Requirements during a Public Health Emergency Under Colorado’s Healthy Families and Workplaces Act By: Andrea Bryan, Garfield & Hecht, P.C. 15:53, March 8, 2021

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Paid Sick Leave Requirements during a Public Health Emergency Under Colorado’s Healthy Families and Workplaces Act By: Andrea Bryan, Garfield & Hecht, P.C.

Colorado’s Healthy Families & Workplaces Act (“HFWA”), S.B. 20-205, was signed in to law by Governor Polis on July 14, 2020. While a comprehensive discussion of the HFWA is not within the scope of this article, the following discussion highlights some of the most notable aspects of the HWFA for employers (including Cities and Towns) during a public health emergency, such as the one we are currently experiencing as a result of the COVID-19 global pandemic.

The HFWA requires nearly all employers to provide up to 48 hours of paid sick leave per year to full and part-time employees. The accrual rate for HFWA paid sick-leave is 1 hour for every 30 hours worked, up to a maximum of 48 hours.   For employers with fewer than 16 employees, this paid-leave does not go in to effect until January 1, 2022. However, in addition to the general “sick leave” accrual, the HFWA requires employers to supplement an employee’ accrued paid sick leave with up to 80 hours of paid leave time when there is a Public Health Emergency (PHE). This has been sometimes referred to as “80-hour COVID leave.” This supplemental “80-hour COVID leave” became effective January 1, 2021, regardless of the size of the employer.

Because the Governor’s COVID-19 PHE declaration has been extended through at least March 17, 2021 (as of the writing of this article), all employers in Colorado must provide each employee with additional paid leave in 2021, supplementing whatever paid leave (whether it be sick, vacation, or other PTO) the employee accrued before the PHE with enough supplemental leave to ensure that the employee can take leave in the following amounts:

  1. for employees normally working 40 or more hours in a week, 80 hours of total leave; and
  2. for employees normally working under 40 hours in a week, the greater of the number of hours the employee (a) is scheduled for work or paid leave in the upcoming fourteen-day period, or (b) actually worked on average in the fourteen-day period prior to the declaration of the public health emergency.

Recent revisions to the Wage Protection Rules by the Colorado Department of Labor and Employment, 7 CCR 1103-7, have further clarified the amount of PHE/COVID leave part-time employees and new hires are entitled to. Part-time employees are entitled to PHE/COVID leave in “at least the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request or (b) actually worked in the 14-day period prior to the declaration of the publichealth emergency or the leave request, whichever is later.” See 7 CCR 1103-7, 3.5.1(C) (Emphasis added).  The revisions also clarify that employees who are hired during a public health emergency are also entitled to PHE/COVID leave. See id.

Employees can use this supplemental leave immediately upon the declaration of the PHE, until four weeks after the end of the PHE, for any of the below purposes:

  1. needing to self-isolate due to either being diagnosed with, or having symptoms of, a communicable illness that is the cause of the PHE [currently COVID-19];
  2. seeking a diagnosis, treatment, or care (including preventive care) of such an illness;
  3. being excluded from work by a government health official, or by an employer, due to the employee having exposure to, or symptoms of, such an illness (whether or not they are actually diagnosed with the illness);
  4. being unable to work due to a health condition that may increase susceptibility or risk of such an illness; or
  5. caring for a child or other family member in category (1), (2), or (3), or whose school, child care provider, or other care provider is unavailable, closed, or providing remote instruction due to the emergency.

So, by way of example, if an employer has a part-time employee who started 2021 with 0 hours of accrued paid sick leave, and that employee is scheduled to work 40 hours in the next 14 days after she makes a leave request, that employee is immediately entitled to 40 hours of paid sick leave that can be used for the reasons enumerated above. Or, if a full-time employee has started the year already with some carry-over accrued sick or vacation time, say 20 hours, then that employee must be given an additional 60 hours of “COVID-leave.”

For employers who offer general paid time off (PTO) at an accrual rate more generous than that required by the HFWA, an employer is not required provide to additional PTO when employees use all of their available PTO for non-HFWA qualifying reasons (e.g., vacation), except if a PHE is declared after an employee uses some or all available PTO for the applicable benefit year, the employer must supplement the employee’s current total of accrued, unused leave to provide for the 80 hour COVID leave.

An employee can use the COVID-related sick leave any time until four weeks after the PHE ends. So if the current PHE declaration ends up expiring on March 17, 2021, then an employee can use the COVID-sick leave until April 17, 2021. After that, any unused COVID leave is gone. An employer cannot require an employee to provide documentation for PHE/COVID-leave.

Further, the only provisions of the HFWA that employers with fewer than 16 employees must comply with prior to January 1, 2022 are those related to paid leave during a PHE.  In other words, if the current PHE expires prior to January 1, 2022, the HFWA does not apply to those employers with fewer than 16 employees until January 1, 2022. 

Employers must display or provide a poster informing all employees and workers of their rights under the HFWA and must provide a written notice of the same to each employee. A copy of the poster provided by the CDOL, Division of Labor Standards & Statistics can be found here: https://cdle.colorado.gov/sites/cdle/files/Poster%2C%20Paid%20Leave%20%26%20Whistleblower%20-%202021%20poster.pdf.

For more information on the HFWA or related matters please contact:

In our Carbondale office Andrea Bryan at , (970) 925-1936, ext. 645.

In our Aspen office Chad Schmit at , (970) 925-1936, ext. 217.