JULY 21, 2020 | 4 MIN READ
Colorado Passes New Law Expanding Employee Leave Benefits
OVERVIEW
Colorado passes law expanding emergency paid leave requirements and requiring employers to provide paid sick leave.
On July 14, 2020, Governor Polis signed into law Colorado Senate Bill 2020-205, known as the Healthy Families and Workplaces Act (HFWA). The law requires nearly all public and private employers in Colorado to provide paid sick leave (PSL) for a wide range of circumstances, including employees’ own health conditions, employees’ need to care for family members, domestic violence and sexual assault issues, and employees’ inability to work due to business, school and childcare closures. The HFWA also requires employers to provide additional paid leave for reasons related to a public health emergency (PHEL).
While the broader PSL requirements do not become effective until 2021 or later, the HFWA also immediately expands the applicability of the emergency paid leave requirements of the Families First Coronavirus Response Act (FFCRA) and limits the exemptions available to employers under that law. The FFCRA expansion becomes effective immediately. Many Colorado employers will need to act quickly to review their existing leave policies and begin complying with these expansive requirements.
FFCRA Expansion
The FFCRA, passed by Congress in March of this year, requires private employers with fewer than 500 employees and all public employers to provide emergency paid sick leave (EPSL) and emergency family and medical leave (EFML) for reasons related to the COVID-19 pandemic through the end of 2020. IMA’s Alert detailing these requirements can be found here.
The HFWA now mandates that all private and public Colorado employers (excluding the federal government), offer EPSL for the same purposes and in the same amounts specified in the FFCRA, regardless of size. Under the FFCRA, employees are entitled EPSL for the following reasons:
- When quarantined or isolated subject to federal, state, or local quarantine/isolation order;
- When advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- When experiencing symptoms of COVID-19 and seeking a medical diagnosis;
- When caring for an individual doing #1 or #2;
- When caring for a child whose school or place of care is closed due to COVID-19; or
- Any “substantially similar conditions” identified by the federal Department of Health and Human Services (note: no such conditions have been identified to date)
Full-time employees may take a maximum of 80 hours of EPSL, and part-time employees are entitled to the number of hours typically worked in a two-week period. Leave taken for reasons 1, 2, and 3 above must be paid at the employee’s regular rate of pay, with caps of $511 per day and $5,110 total, and leave for reasons 4, 5, and 6 must be paid at 2/3 the employee’s regular rate, up to $200 per day and $2,000 total.
The FFCRA includes possible exemptions for “health care providers,” as well as for employers with less than 50 employees. The HFWA, however, does not include these exemptions for Colorado employers. It also does not allow tax credits to be used to recoup the costs of EPSL taken under the HFWA.
If an employer previously provided paid leave for the reasons listed above, that leave may be counted towards an employees’ EPSL allotment. But if the leave was at less than full pay for a category that requires full pay, the amount of leave that can count toward the HFWA requirement will be pro-rated based on the amount paid.
HFWA-required EPSL must be provided in addition to any PTO or other paid leave available to an employee under a paid leave policy that existed before April 1, 2020. But if an employer adopted a new paid leave policy after April 1, 2020, that gave employees a full bank of COVID-related leave that meets or exceeds the HFWA’s requirements, the employer does not need to offer additional EPSL.
Paid Sick Leave
Beginning in 2021, employers with 16 or more employees must provide PSL to all employees. Employers with 15 or fewer employees will become subject to the same requirements in 2022.
Employees must accrue a minimum of one hour of PSL for every 30 hours worked, up to a maximum of 48 hours per year. Salaried, exempt employees will generally accrue PSL based a 40-hour workweek, but exempt employees that work fewer than 40 hours each week will accrue PSL based on the number of hours worked in a normal week. Employers also have the option to instead provide employees a full bank of PSL at the beginning of each year, rather than at the accrual rates identified based on hours worked.
Employers with existing paid leave policies are not required to provide additional paid leave to employees as long as the policy allows employees to use the leave for all of the reasons covered by the HFWA (including public health emergency leave) and meets or exceeds the accrual rates, amount of leave, and rates of pay mandated by the HFWA.
PSL may be used for any of the following reasons:
- When the employee:
a. has a mental or physical illness, injury or health condition that prevents the employee from working;
b. needs to obtain a diagnosis, care, or treatment for a mental or physical illness, injury or health condition; or
c. needs to obtain preventive medical care; - When the employee needs to care for a “family member” (includes immediate family, a child for whom the employee stands in loco parentis, a person who stood in loco parentis for the employee, or other person for whom the employee is responsible for providing or arranging care) dealing with a health condition or injury;
- When the employee or the employee’s family member has been the victim of domestic abuse, sexual assault, or harassment, and the leave is to seek medical attention, obtain victim services or counseling, seek relocation, seek legal services or prepare for or participate in legal proceedings; or
- When, due to a public health emergency, a public official has ordered closure of the employee’s place of business or the employee’s child’s school or place of care.
Employers must pay employees’ normal hourly rate or salary and provide employees the same benefits during PSL. Employees earning only commissions must be paid no less than the applicable minimum wage, and employees paid a base rate plus commissions may be paid either the base rate or minimum wage, whichever is greater.
An employee may roll over any accrued, unused PSL to the next year, but employers are not required to allow employees to use more than 48 hours in a single year. Employers are generally not required to pay out unused PSL upon an employee’s termination of employment, but if the employee is rehired within six months, the employer must restore the employee’s accrued leave balance. Additionally, if an employer’s retaliatory personnel action prevents an employee from taking PSL, the employee may recover the PSL.
Employees must request PSL verbally, in writing, electronically, or in any other format acceptable to the employer, and must include the expected duration of the absence if possible. When the leave is foreseeable, employees must make good-faith efforts to provide advance notice of the leave and schedule the leave in a manner that does not unduly disrupt the operations of the employer. For leave of four or more consecutive days, an employer may require “reasonable documentation” demonstrating that the leave is for a covered reason. However, the law prohibits employers from requiring employees to disclose “details relating to” the employee or family member’s health condition, sexual assault, domestic violence, or stalking as a condition of taking leave.
PSL must be used in hourly increments unless the employer allows the use of shorter increments. Employers may not require employees to search for or find replacement workers in order to use PSL.
Public Health Emergency Leave
In the event of a public health emergency, the HFWA requires employers to supplement employees’ accrued PSL so that each full-time employee (40+ hours) has at least 80 hours of available PHEL. Part-time employees must be afforded at least the number of hours scheduled to work or actually worked in an average 14-day period.
Employees may use PHEL for the following reasons:
- To self-isolate and care for oneself because the employee is diagnosed with, having symptoms of, obtaining a diagnosis or treatment for, or seeking preventive care for a communicable illness that is the cause of the public health emergency
- To care for a family member who is diagnosed with, having symptoms of, obtaining a diagnosis or treatment for, or seeking preventive care for a communicable illness that is the cause of the public health emergency
- Because a public health official or the employee’s employer has determined that the employee’s presence at work or in the community would jeopardize the health of others due to a communicable illness that is the cause of the public health emergency
- To care for a family member when a public health official or the family member’s employer has determined that the family member’s presence at work or in the community would jeopardize the health of others due to a communicable illness that is the cause of the public health emergency
- To care for a child or other family member whose school or child care provider is closed or unavailable due to a public health emergency, including when the school or place of care is physically closed but providing instruction remotely
- When an employee is unable to work because of a health condition that may increase susceptibility or risk of a communicable illness that is the cause of the public health emergency
Employees must provide notice of the need for PHEL as soon as practicable. Employers may not require documentation to support the need for PHEL. Employees are only entitled to the amount of PHEL once during the emergency, even if it is extended or amended by officials. PHEL may be used until four weeks after the emergency is declared over.
Notice, Posting and Recordkeeping
The Colorado Department of Labor and Employment (CDLE) has released a poster describing the HFWA’s leave entitlements which must be displayed in a conspicuous location at the employer’s worksite(s). Employers must also notify employees of their rights under the HFWA, which may be satisfied by providing employees a copy of the poster or the CDLE’s INFO bulletin’s #6A and #6B. The notice and poster must be in English and any language used by at least five percent of the employer’s workforce. (Posters and bulletins in other languages can be accessed here.)
Employers must keep records of the hours worked by employees and amounts of paid leave accrued and used for each employee. These records must be maintained for at least two years. Failure to retain such records will result in a rebuttable presumption that the employer violated the HFWA. Records including health or safety information must be treated as confidential medical records and maintained separately from the employee’s personnel file.
Employers are prohibited from retaliating against employees for using, requesting, or supporting others’ use of paid leave, as well as for participating in an investigation or proceeding relating to alleged violations of the HFWA.
Collective Bargaining Agreements
The HFWA does not apply to employees covered by a collective bargaining agreement (CBA) that provides for equivalent or greater rights than the HFWA, if the CBA is in effect as of the time the HFWA becomes effective, or for new CBAs, where the CBA expressly waives the requirements of the HFWA.
HFWA Paid Leave Cheat Sheet
| FFCRA Expansion | Paid Sick Leave | Public Health Emergency Leave | |
| Effective date | Immediately | For employers with 16 or more employees: 1/1/21
For employers with 15 or fewer employees: 1/1/22 |
TBD – presumably when the PSL requirements take effect in 2021 or 2022 for each employer |
| Covered employers | All private and public employers, except the federal government | All private and public employers, except the federal government | All private and public employers, except the federal government |
| Covered employees | All employees, including part time, regardless of tenure | All employees, including part time, regardless of tenure | All employees, including part time, regardless of tenure |
| Reasons for leave | All reasons covered by the FFCRA’s Emergency Paid Sick Leave Act:
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| Amount of leave | For FT (40+ hours/week) employees: up to 80 hours
For PT employees: average number of hours worked over a typical two-week period |
Covered employees must accrue a minimum of one hour of PSL for every 30 hours worked, up to a maximum of 48 hours per year.
Salaried, exempt employees will accrue PSL on the assumption that they work 40 hours per week. However, if an exempt employee’s normal workweek is less than 40 hours, the employee will accrue PSL based on the number of hours in a normal workweek. |
For FT (40+ hours/week) employees: up to 80 hours
For PT employees: average number of hours scheduled or actually worked over a typical two-week period (whichever is greater) |
| Amount of pay | For reasons 1, 2, and 3 above: employee’s regular rate of pay, capped at $511/day and $5,110 total
For reasons 4, 5, and 6 above: 2/3 of employee’s regular rate of pay, capped at $200/day and $2,000 total |
Employees’ normal hourly rate or salary, not including overtime, bonuses, or holiday pay | Employees’ normal hourly rate or salary, not including overtime, bonuses, or holiday pay |
| Other notes | No exemptions for healthcare workers, emergency responders, and employers with fewer than 50 employees
Employers not covered by the FFCRA are not entitled to the payroll tax credit for wages paid under the HFWA Does not apply to employees covered by a CBA, but only where the CBA provides for equivalent or more generous leave than the HFWA |
Employers may satisfy these requirements through a paid leave policy that provides for equivalent or greater rights
Does not apply to employees covered by a CBA, but only where the CBA provides for equivalent or more generous leave than the HFWA Employees must provide advance notice when the leave is foreseeable Employers may require documentation supporting the need for leave when the leave is longer than four consecutive days Employees must use the leave in hourly increments unless the employer agrees to shorter increments |
Employers may satisfy these requirements through a paid leave policy that provides for equivalent or greater rights
Does not apply to employees covered by a CBA, but only where the CBA provides for equivalent or more generous leave than the HFWA Employees must provide advance notice when the leave is foreseeable Employees must use the leave in hourly increments unless the employer agrees to shorter increments Employers may not require documentation in order for an employee to take PHEL |
This material is for general information only and should not be considered as a substitute for legal, medical, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.