7.21.20

The new Colorado Healthy Families and Workplaces Act, which requires employers to provide paid sick leave to employees under certain circumstances, was signed into law by Gov. Jared Polis (D) on July 14 and took effect at the same time. However, several of its requirements will not take effect until 2021 or 2022, depending upon the size of the employer.

The following is a summary of the key provisions of the HFWA.

Paid COVID-19-related sick leave for employees not covered by Emergency Paid Sick Leave provisions of FFCRA

Effective July 14, the Colorado law requires all employers in the state to provide paid sick leave to employees for issues related to COVID-19, on the same basis as the federal Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act. The FFCRA does not apply to private sector employers with 500 or more employees; thus, this portion of the HFWA in effect extends the benefits of the Emergency Paid Sick Leave Act to large employers.

Generally speaking, this means that employers must provide up to 80 hours of paid sick leave to Colorado employees who

  • Have COVID-19 symptoms and are seeking a medical diagnosis.

  • Are ordered by a “government agent” (federal, state, or local) or advised by a health provider, to quarantine or isolate due to a risk of COVID-19.

  • Are taking care of someone else due to COVID-19 precautions (that is, taking care of someone who is ordered to quarantine or isolate, or who is taking care of a child when the school or place of care is closed, or when the child care provider is unavailable, because of COVID-19).

Leave taken under the first two categories must be paid at the same hourly rate or salary and with the same benefits that the employee normally earns during hours worked. Leave taken under the third category may be paid at two-thirds the employee’s rate of pay.

If an employee has already taken paid leave in 2020 for any of the three designated categories, employers may count the leave already taken as part of the 80 hours of leave the HFWA requires in 2020. Covered employers are subject to this provision through December 31.

Paid sick leave (not limited to coronavirus)

Beginning January 1, 2021, the HFWA requires all employers with 16 or more employees to provide paid sick leave to their employees. Beginning January 1, 2022, these requirements will also apply to employers with 15 or fewer employees.

Under the Act, employees accrue one hour of paid leave for every 30 hours worked up to a maximum of 48 hours per year. Employees who are exempt from overtime accrue paid sick leave based upon a 40-hour workweek, or the hours in their regular workweek if that involves fewer than 40 hours. Employees begin accruing leave as soon as their employment begins, and employers may not impose a waiting period before employees can use leave accrued under this section of the HFWA.

Employees may use their accrued sick leave in any of the following circumstances:

  • They have a mental or physical illness, injury, or health condition that prevents them from working.

  • They need to obtain preventive medical care, or seek a medical diagnosis, care, or treatment, of any mental or physical illness, injury, or health condition.

  • They need to care for a family member who has a mental or physical illness, injury, or health condition, or who needs the types of care listed in the bullet above.

  • The employee or the employee’s family member was a victim of domestic abuse, sexual assault, or criminal harassment and needs leave to obtain medical attention, mental health care or other counseling, victim services (including legal services), or relocation.

  • Due to a public health emergency, a public official closed either

    • the employee’s place of work, or

    • the school or place of care of the employee’s child,  requiring the employee to be absent from work to care for the child.

Employees may carry over into a subsequent year up to 48 hours of accrued but unused paid sick and safe time. However, employers are not required to allow an employee to use more than 48 hours of paid sick leave in a year.

Employees must use the leave in minimum increments of one hour, unless their employers permit use of smaller increments. When the need to take leave under the statute is foreseeable, employees are required to make good-faith efforts to provide notice to their employers before taking sick leave.

Public health emergency leave

In addition to providing the paid sick leave outlined above, on the date that a public health emergency is declared, employers must also supplement employees’ accrued leave. “Public health emergency” is defined as (1) an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which an emergency is declared by the governor or a federal, state, or local public health agency; or (2) a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

In the event of a public emergency, as defined by the law, employees’ paid leave must be supplemented as follows:

  • For employees who normally work 40 hours or more per week, employers must provide at least 80 hours of public health emergency leave. Forty-eight of these hours must be provided for any HFWA purpose (emergency-related or not), and an additional 32 hours must be provided to employees for any of the public health emergency-related purposes described below.

  • For employees who normally work fewer than 40 hours in a week, employers must provide the greater of the amount of time the employee is scheduled to work in a 14-day period, or the amount of time the employee actually works during an average 14-day period.

Employees may use public health emergency leave for any of the following purposes:

  • To self-isolate due to either being diagnosed with, or having symptoms of, a communicable illness that is the cause of a public health emergency.

  • To seek a diagnosis or treatment of, or care (including preventive care) for, such an illness.

  • Because the employee is excluded from work by a government health official, or by an employer, due to the employee’s exposure to, or symptoms of, such an illness.

  • Inability to work due to a health condition that may increase susceptibility or risk of such an illness.

  • Need to care for a child or other family member who falls into any of the first three categories above, or whose school, child care provider, or other care provider is either unavailable, closed, or providing remote instruction due to the public health emergency.

Employers may count an employee’s unused paid sick leave toward the public health emergency leave. Employees are eligible for public health emergency leave only one time during a public health emergency, even if the public health emergency is subsequently amended, extended, restated, or prolonged.

Notice requirements

Employers must notify Colorado employees in writing of their right to take paid leave, without fear of retaliation, in the amounts and for the purposes specified in the HFWA. Employers must also display an informational poster issued by the Colorado Division of Labor Standards and Statistics in a conspicuous and accessible place in each establishment where the employees work. The poster must be posted in English, as well as any language that is the first language spoken by at least 5 percent of the employer’s workforce. A copy of the 2020 poster is available here.

Employers will be deemed to have met both of the HFWA’s notice requirements if they post the Division’s poster and provide a copy of it to all employees. The Act’s notice requirements are waived during any times in which an employer’s business is closed due to a public health-related emergency. For employees working remotely, and for all employees of employers without physical workspaces, an electronic copy of the poster is sufficient.

Additional guidance

Additional guidance from the Colorado Division of Labor Standards and Statistics is available here.

For a printer-friendly copy, click here.

Attorneys

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