CDLE Updates Guidance on Paid Sick Leave

July 6, 2022

The Colorado Department of Labor and Employment (CDLE) recently revised Interpretive Notice & Formal Opinion (INFO) #6B regarding the Healthy Families and Workplaces Act (HFWA), clarifying the CDLE’s position on the effects of carrying over unused sick leave.

Unused Sick Leave Counts toward the Next Year’s Entitlement

The revised INFO #6B clarifies the amount of sick leave employees can accrue when they carry over unused sick leave from one year to the next. Under the HFWA employees must accrue (or, alternatively, be granted) up to 48 hours of paid sick leave per year. Any unused sick leave carries over to the next year.

The HFWA does not address how much sick leave employees can accrue in addition to the amount carried over from the previous year. Using examples, the revised INFO #6B makes it clear that the amount of paid sick leave carried over from one year can be counted toward the 48 hours an employee is entitled to accrue in the subsequent year. One of the CDLE’s examples is an employee who accrues 48 hours and uses 8 hours during the year. The 40 unused hours roll over into the next year. The employee would continue accruing sick leave up to 8 hours for a total of 48 hours of paid sick leave.

How much sick leave an employee can accrue in addition to any carry-over is not a practical concern for employers with separate sick leave and vacation policies for two reasons. First, unless the employer’s policy is more generous than the HFWA, employees cannot use more than 48 hours of paid sick leave in a year. Second, the HFWA does not require employers to “cash out” unused paid sick leave upon termination of employment. However, the CDLE’s clarification regarding accrual may be relevant to employers with a PTO policy that covers both sick leave and vacation.

Accrued Sick Leave Counts toward Public Health Emergency Leave (PHEL)

When an appropriate authority declares a “public health emergency” employees are entitled to up to 80 hours of paid leave (depending on how many hours a week the employee normally works). The revised INFO #6B confirms that any accrued, unused sick leave can be counted toward the 80-hour PHEL entitlement.

During a public health emergency employees continue to accrue regular paid sick leave (up to 48 hours), so there is no need to calculate the amount of PHEL an employee is entitled to unless the employee requests PHEL leave. INFO #6B states that employees are allowed to use PHEL before using their accrued sick leave, if their reason for leave would qualify for both kinds of leave.

If you want to read INFO #6B, you can find it here.

Reminder: The COVID-19 Public Health Emergency is still in effect. See the article below.