Colorado clarifies paid leave rules

Colorado has issued emergency rules and guidance on the state's new paid leave requirements.

Background:

In 2020, Colorado enacted the Healthy Families and Workplaces Act of 2020 (HFWA). The HFWA included the following three leave requirements:

1. Paid sick leave. Effective January 1, 2021, employers with 16 or more employees must provide paid sick leave to their employees. Employers with 15 or fewer employees have until January 1, 2022 to comply. Paid sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours. Accrual begins when employment starts or the applicable effective date, whichever is later. However, employers have the option of providing all the paid sick leave at the beginning of the year. Employees are entitled to carry over up to 48 hours of unused paid sick leave to the following year.
2. Public health emergency leave. In addition to the paid sick leave discussed above, employers must provide public health emergency leave (PHEL) in an amount based on the number of hours the employee works. Employees who normally work 40 hours or more per week are entitled to at least 80 hours of PHEL. Employees who normally work fewer than 40 hours in a week are entitled to at least the greater of either 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.
3. COVID-19 emergency paid sick leave. Through December 31, 2020, all employers were required to provide each employee with emergency paid sick leave for reasons related to the COVID-19 pandemic in the amounts and for the purposes specified in the emergency paid sick leave provisions of the federal Families First Coronavirus Response Act (FFCRA).

Emergency Rules and Guidance:

In the emergency rules and guidance, the Colorado Department of Labor and Employment (CDLE) makes clear that all Colorado employers must provide employees access to up to 80 hours of PHEL as of January 1, 2021 due to the COVID-19 public health emergency. The CDLE also clarifies that employers cannot count COVID-19 emergency paid sick leave (see #3 above) provided in 2020 toward the PHEL that state law requires.

Note: Employers may count unused paid sick leave (see #1 above) toward the PHEL that state law requires. Therefore, when a public health emergency is declared, employers must provide employees who normally work 40 hours in a week with a one-time supplemental number of hours which, when added to the paid sick leave the employee has already accrued for the year, will provide them with access to 80 hours of total paid leave.

Employees may use PHEL for the following purposes:

• To self-isolate because they are diagnosed with, or experience symptoms of, the communicable illness that is the cause for the public health emergency;
• To seek or obtain medical diagnosis, care, or treatment if experiencing symptoms associated with a communicable illness that is the cause of the public health emergency;
• To seek preventive care concerning a communicable illness that is the cause of the public health emergency;
• If local officials or the employee's employer determines that the individual's presence on the job or in the community would jeopardize the health of others because of the individual's exposure to the communicable illness or because the employee is exhibiting symptoms of the communicable illness (regardless of diagnosis);
• To care for a family member to whom any of the above applies;
• 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 due to a public health emergency, including if a school or place of care is physically closed but providing instruction remotely; or
• If an employee is unable to work because the employee has a health condition that may increase susceptibility to or risk of communicable illness that is the cause of the public health emergency.

Employees are only eligible for PHEL once during the entirety of the public health emergency, even if it is amended, extended, restated, or prolonged. Employees may use PHEL until four weeks after the official public health emergency.

Compliance Recommendations:

Colorado employers should review the emergency rules and guidance in full and ensure compliance. Please contact your dedicated service professional with any questions.