Update on the HFWA

December 28, 2020

The Healthy Families and Workplaces Act (HFWA) requires Colorado employers to provide paid sick leave to their employees, including supplemental leave in the event of a “public health emergency” as defined by the HFWA. (For an overview of the HFWA, see my article dated July 23, 2020, below.) Last week the Colorado Department of Labor and Employment (CDLE) revised its Wage Protection Rules to clarify that Colorado is currently in a “public health emergency” and, therefore, beginning January 1 employees are entitled to up to 80 hours of paid sick leave for the reasons specified in the HFWA.

In March 2020, Governor Polis issued Executive Order D 2020 003, declaring a “state of disaster emergency” due to COVID-19. That order has been extended every thirty days. On December 27, 2020, Governor Polis issued Executive Order D 2020 290, extending the state of disaster emergency for another 30 days. Thus, even though the HFWA became law after the state of emergency was originally declared, the Governor’s extension of the state of emergency into January triggers the HFWA’s requirement to provide employees with additional paid sick leave. However, employers are required to provide supplemental leave only once during a public health emergency, regardless of how long that emergency lasts.

The CDLE also issued Interpretive Notice & Formal Opinion (“INFO”) 6C to address the relationship between the different sick leave provisions of the HFWA. Among other things, INFO 6C points out that COVID-19 leave in 2021 is not a continuation of the emergency sick leave that employers were required to provide in 2020, which was based on the paid sick leave provisions of the Families First Coronavirus Response Act, a federal law. The 2021 requirement is a new supplement to which employees are entitled, even if they exhausted the 80 hours provided in 2020.

INFO 6C also states that all Colorado employers, regardless of size, must provide their employees with 80 hours of paid sick leave during the current public health emergency. This may come as a surprise to employers with fewer than 16 employees, because those employers are not subject to the HFWA’s requirement to provide 48 hours of basic paid sick leave per year until 2022. It seems logical that an employer cannot supplement something it does not provide in the first place. Nevertheless, the CDLE says employers with fewer than 16 employees “must still provide 80-hour COVID leave, despite not having to provide 48-hour general paid leave until 2022.”

The revised Wage Protection Rules (redlined version) are here. INFO 6C is here.