On July 14, 2020, Colorado Governor Jared Polis signed into law the Healthy Families and Workplaces Act (the “Act”) requiring employers to provide paid sick leave benefits for employees working in Colorado and establishes an enhanced sick leave during the COVID-19 public health emergency through December 31, 2020 (“Supplemental COVID-19 Paid Sick Leave”) for employers not covered by the Families First Coronavirus Response Act (“FFCRA”). For additional information about the FFCRA and the Act’s Supplemental COVID-19 Paid Sick Leave expansion through 2020, please visit our blog post here, and here.

The Act separately mandates that, effective January 1, 2021, Colorado employers with 16 or more employees must provide employees at least one hour of paid sick leave for every 30 hours worked, up to 48 hours total (“Colorado Sick Leave”). Further, all employers in Colorado must begin providing earned paid sick leave effective January 1, 2022. This article reviews what we know so far about the new Colorado Sick Leave requirements.

Which Employers Does Colorado Sick Leave Apply to?

The Act applies to all private employers that have an employee who works in Colorado. Employers with 16 or more employees must begin providing earned paid sick leave on January 1, 2021. All employers, regardless of size, must begin providing earned paid sick leave effective January 1, 2022.

Who is Eligible to take Colorado Sick Leave?

The Act defines an employee broadly as any person performing labor or services for an employer’s benefit. The law does not apply to independent contractors. Employees immediately begin to accrue paid sick leave upon hire and may use sick leave as soon as it is accrued.

What are the Covered Reasons for Taking Colorado Sick Leave?

An employee is permitted to use sick leave for the following reasons:

  • The employee has, or is caring for a family member that has a mental or physical illness, injury, or health condition that prevents the employee from working,
  • The employee, or family member the employee is caring for, needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
  • The employee or a family member the employee is caring for needs to obtain preventive care;
  • The employee or a family member has been the victim of domestic abuse, sexual assault, or harassment and the use of leave is to seek medical attention, obtain services from a victim services organization, obtain mental health, seek relocation, or seek legal services; or
  • A public health emergency exists and a public official has ordered closure of the employee’s place of business, the school or place of care of the employee’s child.

Who is Considered a Family Member for Purposes of Sick Leave?

The Act uses a broad definition to include an employee’s immediate family member (a person related by blood, marriage, civil union, or adoption), a child to whom the employee stands in loco parentis, a person who stood in loco parentis to the employee when the employee was a minor, and a person for whom the employee is responsible for providing or arranging health or safety-related care.

How Does an Employee Request Colorado Sick Leave?

An employee may make a request orally, in writing, electronically, or by any other means acceptable to the employer. An employer may provide a written policy that contains reasonable procedures for providing notice when paid sick leave is foreseeable. However, it is important to note that an employer may not deny paid sick leave based on noncompliance with such policy.

What Amount of Leave Must be Provided to Eligible Employees?

Employees will earn one hour for paid sick leave for every 30 hours worked. Employees can earn a maximum of 48 hours of paid sick leave each year.

Additional Paid Sick Leave During a Public Health Emergency

In addition to providing paid sick leave discussed above, employers must supplement employees’ accrued leave during a public health emergency to allow employees to take the following:

  • For employees who normally work 40 hours or more per week: at least 80 hours
  • For employees who normally work fewer than 40 hours in a week: 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.

The employee’s balance of accrued, unused paid sick leave counts toward the 80 hours or two weeks of public health emergency leave, but employers must add paid time to reach 80 hours.

The Act defines a “public health emergency” as

  1. an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which an emergency is declared by the governor or a federal, state, or local public health agency; or
  2. a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

The Act also outlines specific purposes for this additional accrued paid sick leave during a public health emergency, including but not limited to the following:

  • the need to self-isolate or seek medical care after experiencing symptoms of or being diagnosed with an illness that is the cause of the public health emergency;
  • the need to care for a family member who is self-isolating or needs medical care after experiencing symptoms of or being diagnosed with such an illness;
  • seeking preventative care concerning the illness that is the cause of the public health emergency;
  • inability to work due to a health condition that may increase the employee’s susceptibility to the illness.

For the entire list of acceptable reasons for sick leave due to a public health emergency, please see Section 8-13.3-405.

How is a Year Defined to Determine Leave Accrual?

 A year is a consecutive 12-month period as determined by the employer.

What is the Accrual Rate?

Beginning January 1, 2021, employees will accrue sick leave at a rate of at least 1 hour for every 30 hours worked. Employers may also frontload the full amount of sick leave in a lump sum at the beginning of each year, provided they do not reduce the available amount of sick leave based on the number of hours actually worked by the employee.

How is Rate of Pay for Sick Leave Calculated?

Leave must be paid at the same hourly rate or salary and with the same benefits the employee normally earns during hours worked. The rate must be at least the applicable minimum wage, but need not include overtime, bonuses, or holiday pay. Employees paid commissions or other sales-based pay must receive whichever is greater: (A) their hourly or salaried rate; or (B) minimum wage.

Can Employers Require a Doctor’s Note?

If an employee uses paid sick leave for four or more consecutive work days, the employer may require reasonable documentation that the paid sick leave is for a purpose that is authorized by the Act. Employers cannot require “details” about the employee’s (or their family’s) health or safety information and any such information that employers receive must be kept confidential and stored in a separate file.

Is there an Employer Notice Requirement?

The Act requires employers to both (1) notify employees in writing of the right to take paid leave and (2) display an informational poster “in a conspicuous and accessible” place in “each establishment” where employees work.  

The Colorado Department of Labor and Employment (“CO DOL”) has clarified that requirement #1 (notice) can be satisfied by giving employees versions of the latest version of this Interpretive Notice and Formal Opinion #6B (“INFO #6B) or the poster (on paper or electronically). Requirement #2 (posting) is satisfied by posting the Division of Labor Standards and Statistic poster. It is recommended that employers check the Colorado Department of Labor’s information page for the latest poster versions before providing notices and posters to employees.  Note that as of January 1, 2021, INFO #6B and the 2021 poster (which has not yet been released) will completely replace INFO #6A and the 2020 version of the poster.

Both requirements are waived during any time an employer’s business is closed due to a public health-related emergency. For employees working remotely, and for all employees of employers without a physical workspace, complying with requirement #1 (notice) is enough, and can be done electronically. Employers must provide notices and posters in “any language that is the first language spoken by at least five percent” of its workforce. Spanish versions of the poster and INFO #6A are available. 

Are Employers Required to Carry-over to the Next Year or Payout Unused Sick Leave at Separation of Employment?

Unused sick leave can be carried over to the following calendar year. An employer may limit carrying over more than 48 hours of paid leave from year to year and can also limit an employee from using more than 48 hours of sick leave in one year. Employers are not required to pay employees for unused sick leave at the end of the calendar year or upon separation from employment.

What Happens to Colorado Paid Sick Leave if an Employee is Rehired?

If the rehire occurs within six months after separation, the employer must reinstate any Colorado Sick Leave that the employee accrued but did not use during the employee’s previous employment.

Are there any other Prohibitions under Colorado Sick Leave?

Employers are prohibited from discrimination and retaliation against employees that request or use sick leave.

How will Colorado Sick Leave Interact with Existing Employer Leave Policies?

An employer is not required to provide any additional leave under Colorado Paid Sick Leave if the employer has adopted a leave policy that provides employees with an amount of leave which meets or exceeds the requirements and satisfies the accrual, carryover, and use requirements of the law.

How will Colorado Sick Leave Interact with Local Sick Leave Laws?

Colorado Sick Leave does not limit or otherwise affect the applicability of any other law, regulation, requirement, policy, or standard that provides for a greater amount, accrual, or use by employees of paid sick leave or that extends other protections to employees.

What are the Employer Recordkeeping Requirements?

The Act requires that an employer retain paid sick leave records for each employee “documenting hours worked, paid sick leave accrued, and paid sick leave used” for a two-year period.

Additional Resources

Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2020 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved

Lizet Ramirez – Lizet is a Client Compliance Manager for Sequoia One, where she works with our clients to optimize and streamline benefits compliance. In her free time, Lizet enjoys live music, travel, hiking and spa days.