New Law Requires Colorado Employers to Provide Three Types of Paid Sick Leave

July 23, 2020

Last week Governor Polis signed the Healthy Families and Workplaces Act (“HFWA”). Under this new law, Colorado employers will be required to provide three types of paid sick leave: Paid Sick Leave; Additional Paid Sick Leave During a Public Health Emergency;

Paid Sick Leave Related to COVID-19.

I will refer to the first one as “PSL,” the second as “PHE-PSL,” and the third as “COVID-19 PSL.” I will discuss COVID-19 PSL first because it became effective when the Governor signed the bill on July 14. The other two types of leave will be phased in later.

Paid Sick Leave Related to COVID-19 (“COVID-19 PSL”)

COVID-19 PSL replaces the Colorado HELP Rules, which have expired. The COVID-19 portion of the HFWA provides that all employers in Colorado, “regardless of size, shall provide paid sick leave in the amount and for the purposes provided in the federal Emergency Paid Sick Leave Act…to each employee who is not covered under the Emergency Paid Sick Leave Act.” (For a summary of the Emergency Paid Sick Leave Act, see my post of March 27, 2020.) In other words, all Colorado employers must provide their employees with the same leave benefits that are provided under the federal EPSLA, without the exemptions that are available under the EPSLA. However, this portion of the HFWA is effective only through December 31, 2020, which is when the EPSLA will expire (if not extended by Congress).

Paid Sick Leave (“PSL”)

On January 1, 2021, the PSL provisions (and presumably the PHE-PSL provisions) of the HFWA become effective for employers with 16 or more employees. Beginning January 1, 2022, all employers will be subject to those provisions. The statute defines “employer” very broadly, but the law does not apply to independent contractors or employees who are subject to the federal Railroad Unemployment Insurance Act.

Under the HFWA, employees must accrue a minimum of one hour of paid sick leave for every 30 hours worked, but employees are not entitled to earn or use more than 48 hours per year. Employees who are exempt from overtime pay accrue sick leave based the assumption that they work 40 hours a week. However, if an exempt employee’s typical workweek is less than 40 hours, the employee accrues paid sick leave based on the number of hours the employee usually works in a week. Employers have the option of granting the requisite paid sick leave at the beginning of each year, rather than having it accrue incrementally. Up to 48 hours of unused PSL will carry over to the next year; however, employers are not required to give an employee more than 48 hours of PSL in a year.

The PSL component of the HFWA provides paid leave not only for sickness, but for other reasons as well. An employee can use accrued PSL when the employee:

Has a mental or physical illness, injury, or health condition that prevents the employee from working;

Needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or;

Needs to obtain preventive medical care, or;

Needs to care for a family member who meets any of the above criteria.

An employee can also use accrued PSL if the employee or a family member has been the victim of domestic abuse, sexual assault, or harassment, if the purpose of the leave is to:

Seek medical attention to recover from a mental or physical illness, injury, or health condition caused by the domestic abuse, sexual assault, or harassment;

Obtain mental health or other counseling;

Seek relocation due to the domestic abuse, sexual assault, or harassment;

Seek legal services, including preparation for or participation in a civil or criminal proceeding relating to or resulting from the domestic abuse, sexual assault, or harassment.

Lastly, employees can use accrued PSL if, due to a public health emergency, a public official has ordered the closure of:

The employee’s place of business, or:

The school or place of care of the employee’s child and the employee needs to be absent from work to care for the child.

Employees can request sick leave orally, in writing, electronically, or by any other means acceptable to the employer. When possible, the employee should include the expected duration of the absence. Employers can have a written policy that includes a procedure for employees to give notice when the need for leave is foreseeable. However, an employer cannot deny leave based on noncompliance with the policy. When the need for leave is foreseeable, employees are to make a good-faith effort to provide notice and make reasonable efforts to schedule the leave so it does not unduly disrupt the employer’s operations.

If an employee takes PSL for four or more consecutive workdays, the employer can require reasonable documentation that the leave was for a purpose authorized by the HFWA. The implication is that employers cannot require documentation if the leave is for fewer than four workdays. This aspect of the statute may invite abuse by some employees. Given the generous leave provisions of the HFWA, some employers may decide to pare back the number of vacation or PTO days they give employees.

Additional Paid Sick Leave During a Public Health Emergency (“PHE-PSL”)

In the event of a public health emergency, as defined in the HFWA, employers must supplement their employees’ PSL to ensure they can take the following amounts of paid leave:

For employees who normally work 40 or more hours in a week, at least 80 hours;

For employees who normally work fewer than 40 hours in a week, at least 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 on average in a 14-day period.

Employees are eligible for PHE-PSL only once during a public health emergency, but may use it until four weeks after the official termination or suspension of the public health emergency. “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 (a) an emergency is declared by a federal, state, or local public health agency, or (b) a disaster emergency is declared by the governor, or;

(2) a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

Employees can use PHE-PSL for any of the following reasons:

To self-isolate and care for oneself because the employee is diagnosed with a communicable illness that is the cause of a public health emergency;

To self-isolate and care for oneself because the employee is experiencing symptoms of a communicable illness that is the cause of a public health emergency;

To seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of a communicable illness that is the cause of a public health emergency;

To seek preventive care concerning a communicable illness that is the cause of a public health emergency.

An employee can also use PHE-PSL to care for a family member who falls under any of the reasons above.

An employee is entitled to PHE-PSL if a local, state, or federal public official or health authority with appropriate jurisdiction, or the employer, determines that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to the communicable illness or because the employee is exhibiting symptoms of the communicable illness, or to care for a family member under the same circumstances.

An employee can use PHE-PSL to care for a child or other family member when the child’s care provider is unavailable due to a public health emergency, or if the child's or family member's school or place of care has been closed by a local, state, or federal public official or at the discretion of the school or place of care due to a public health emergency, including if a school or place of care is physically closed but providing instruction remotely.

Finally, an employee can take PHE-PSL if the employee is unable to work due to a health condition that may increase the employee’s susceptibility to or risk of a communicable illness that is the cause of the public health emergency.

If the need for leave is foreseeable, and the employer’s place of business is not closed, an employee shall give the employer notice of the need for leave as soon as practicable. However, documentation is not required to take PHE-PSL.

Other Provisions

An employer that has a paid leave policy can satisfy the requirements of the PSL and PHE-PSL portions of the statute if the employer: (1) makes available to its employees, through its paid leave policy, an amount of paid leave sufficient to meet the PHE-PSL requirement and meet the accrual requirements of the PSL, and; (2) allows employees to use paid leave for the same purposes and under the same conditions as provided by the HFWA.

Although the HFWA defines PSL as “wages,” the statute expressly states that employers are not required to pay out accrued, unused PSL upon termination of employment.

The HFWA includes a provision addressing collective bargaining agreements, i.e., whether and how the statute is to be implemented in workplaces subject to a CBA.

This article summarizes the main aspects of the HFWA. The HFWA also addresses confidentiality of employee information, enforcement procedures, damages and penalties, and retaliation, as well as requirements pertaining to recording keeping, notice to employees, and the inevitable workplace poster.

The text of the statute can be found here and the poster here. Note that the poster is effective only through December 31, 2020. I assume the CDLE will provide a new poster when the COVID-19 related provisions of the law have expired.