On December 23, 2020, the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics (Department) issued an Interpretive Notice & Formal Opinion (“guidance”) and emergency revisions to wage protection rules related to the Healthy Families and Workplaces Act (“HWFA”). The guidance and rules, among other things, clarify how the HWFA’s paid sick leave for the public health emergency (“PHEL”) will apply come January 1, 2021, in light of the ongoing COVID-19 pandemic. For more information about the HWFA and its other requirements please see our prior blog post. This article covers the significant interpretations and clarifications to PHEL under the HWFA from the recent guidance.
Beginning January 1, 2021
- All employers, not just employers with 16 or more employees in Colorado, must provide PHEL to their Colorado employees;
- Employers must ensure their policies and practices comply with this new Department guidance.
On July 14, 2020, Colorado Governor Jared Polis signed into law the HWFA, requiring all private employers with at least one employee who works in Colorado to provide earned paid sick and safe time leave. Employers with 16 or more employees must begin providing earned paid sick and safe time leave on January 1, 2021. All employers, regardless of size, must begin providing earned paid sick and safe time leave effective January 1, 2022.
HWFA also establishes a separate and additional type of leave, Public Health Emergency Leave, that is triggered during a public health emergency as follows:
- 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.
In a public health emergency (as defined by the HFWA), employees can use PHEL for the following needs:
- self-isolating or work exclusion due to exposure, symptoms, or diagnosis of the communicable illness in the public health emergency;
- seeking a diagnosis, treatment, or care (including preventive care) of such an illness;
- being unable to work due to a health condition that may increase susceptibility to or risk of such an illness; or
- caring for a child or other family in category (1)-(3), or whose school or childcare is unavailable due to the public health emergency.
Important Clarifications to PHEL Beginning January 1, 2021 due to COVID-19
- The ongoing COVID-19 public health emergency requires employers to provide supplemental PHEL as of January 1, 2021. The Department has clarified that the Governor’s declaration and subsequent extensions of the public health emergency, requires employers to provide employees up to 80 hours of supplemental PHEL leave as of January 1, 2021.
- Employers with fewer than 16 employees are required to comply with the supplemental PHEL during a public health emergency beginning January 2021. The Department has clarified that all employers, including those with less than 16 employees, must provide PHEL in light of the ongoing COVID-19 pandemic. However, these same employers are not required to provide 48 hours of earned paid sick and safe time pursuant to the HFWA until 2022. As a reminder, the HFWA also mandates that employers with 16 or fewer employees provide at least one hour of paid sick leave for every 30 hours worked, up to 48 hours total beginning January 1, 2022. For more information about the timeline of this general paid sick and safe time requirement under the HFWA please visit our blog post.
- Employers cannot credit COVID-19 related paid sick leave provided during 2020 against the additional PHEL leave obligation beginning January 1, 2021. The Department clarified that the PHEL obligation in 2021 is a new supplemental leave of up to 80 hours, regardless if an employee used 80 hours in 2020 for COVID-19 related reasons (such as pursuant to Colorado’s temporary paid sick leave expansion for employers not covered by the Families First Coronavirus Response Act).
- Beginning January 1, 2021, employers need only provide PHEL once during the current public health emergency. The Department has clarified that once an employee exhausts their supplemental PHEL the HFWA does not require the employer provide any additional leave for the same public health emergency.
While the Department’s interpretive guidance may face legal challenges due to its expansive nature, it is best practice to comply with the guidance until it is circumvented by judicial or legislative action. State and local responses to the pandemic are ongoing and dynamic from day to day and employers are encouraged to consult with legal counsel when determining if and how to comply with guidelines as they are released.
- Interpretive Notice & Formal Opinion #6C
- Interpretive Notice & Formal Opinion #6A and 6B
- Healthy Workplaces and Families Act Poster
- Emergency Temporary Revisions to Wage Protection Rules
- Colorado Department of Labor – Division of Labor Standards and Statistics
- Sequoia Blog: Colorado Passes Mandatory Paid Sick Leave Effective January 2021
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