On July 14, 2020, Governor Jared Polis signed into law the Healthy Families and Workplace Act (HFWA), and Colorado joined the growing number of states and cities that require employers to provide paid sick leave. Many Colorado employers may have to act quickly to comply with their new legal obligations. The Colorado Division of Labor Standards and Statistics has released interpretive guidance on the HFWA, separating the law’s mandates into two broad categories: 2020 requirements, and post January 1, 2021 requirements.
2020: COVID-19 Paid Sick Leave
From July 15, 2020 through December 31, 2020, all Colorado employers, regardless of size, are required to provide paid sick leave to employees for the COVID-19 related reasons as laid out in the Federal Families First Coronavirus Response Act (FFCRA). Specifically, employees must be granted leave for:
1. having COVID-19 symptoms and seeking a medical diagnosis; or
2. being 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; or
3. taking care of someone else due to COVID-19 precautions—either someone ordered to quarantine or isolate, or a child whose school, place of care, or child care is closed or unavailable
If an employee qualifies under reasons 1 or 2 above, Colorado employers must provide up to two weeks of paid leave at the employee’s regular rate of pay. If an employee qualifies under reason 3, employers need only provide 80 hours of leave at 2/3 of the employee’s regular rate of pay.
Notwithstanding the above, if an employee has already used paid leave in 2020 for any of the reasons listed above, that leave may be counted towards their leave allotment under the HFWA. Further, Colorado employers who already have paid leave policies that allow for leave to be taken for any reason, and which provide for at least as much time off as the HFWA, need not provide additional leave.
In sum, the HFWA makes the federal FFCRA emergency paid sick leave provisions, which only apply to employers with 500 employees or more, applicable to all Colorado employers, regardless of size.
2021 Onward: General Paid Sick Leave
Beginning on January 1, 2021, all Colorado employers with 16 or more employees must provide paid general sick leave. This leave will accrue at one hour for every 30 hours worked. This accrual is capped at 48 hours.
After one year, on January 1, 2022, this requirement will apply to all employers, regardless of size.
Under these general sick leave provisions an employee will begin accruing paid sick leave on his or her first day of employment. This time will carry over each year, up to 48 hours a year. Notably, the accrued sick leave also carries over if an employer is acquired by another entity. The accrued time need not be paid out upon termination.
This paid sick leave can be used for numerous purposes:
- The employee has a mental or physical illness, injury, or health condition and needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care;
- The employee needs to care for a family member who has a mental or physical illness, injury, or health condition; and needs a medical diagnosis, care, or treatment related to such illness, injury, or condition, or needs to obtain preventive medical care;
- The employee or family member has been the victim of domestic abuse, sexual assault, or harassment and must be absent from work for purposes related to such crime; or
- A public official has ordered the closure of the school or place of care of the employee's child, or of the employee’s place of business due to a public health emergency, necessitating the employee’s absence from work (such as has been the case during the current pandemic).
Employees must provide notice of the leave as soon as practicable, provided the need for the leave is foreseeable. Employers may request documentation for the leave if the employee uses more than four consecutive paid sick days.
Similar to the COVID-19 paid sick leave requirements discussed above, if Colorado employers already have more generous paid time-off or sick leave policies, they need not provide additional leave.
In light of these sweeping changes, many Colorado employers will need to act now. Colorado employers with more than 500 employees, who were not previously subject to the FFCRA, are now required to provide paid sick leave for COVID-19 related reasons.
Looking ahead to 2021, Colorado employers should begin to develop paid sick leave policies compliant with the new law, and train management on this new type of leave. The Colorado Division of Labor Standards and Statistics will also release a poster about employee rights, which must be displayed.
Ballard Spahr’s Labor and Employment Group regularly assists clients in all aspects of employer/employee relations, workplace polices, compliance audits, and litigation under state and federal law.
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