The Colorado Department of Labor and Employment (CDLE) has adopted new wage protection rules (CDLE rules) effective January 1, 2022 that include updates to aspects of the state’s general paid sick and safe leave law known as the Healthy Families and Workplaces Act (HFWA). The state also released a new Colorado Overtime and Minimum Pay Standards Order #38 (COMPS Order #38) which incorporates relevant updates to the HFWA. For more information about COMPS Order #38 please visit our blog post.
As a reminder, the paid sick and safe requirements under the HFWA became effective on January 1, 2021, for employers with 15 or more employees. As a result of the ongoing pandemic HFWA was amended to require all CO employers (regardless of size) to provide public health emergency leave (PHEL) which remains ongoing. Now, as of January 1, 2022, all Colorado employers regardless of size must provide paid sick and safe leave under the HFWA. For more information about the HFWA’s general requirements and CO PHEL, please visit our blog posts here and here.
Updates to HFWA for 2022
The CDLE rules provide employers detail on calculating the pay rate for employees taking paid HFWA leave. Specifically, it is now calculated using a similar definition of regular rate under COMPS Order #38 except that bonuses are not included and there is a special weighted average that must be used for employees with multiple hourly rates. The rules also clarified that the HFWA pay rate is “determined based upon the employee’s pay over the 30 calendar days prior to taking leave, unless the employee has not yet worked 30 calendar days in which case the longest available period shall be used.” There are additional nuances for determining the HFWA pay rate related to indeterminate shifts and on-call employees that are beyond the scope of this article. Employers are encouraged to consult with employment counsel as it relates to these updates in pay rate calculations to ensure they are being implemented accurately.
Clarification of HFWA Recordkeeping Requirements
The CDLE rules provide employers clarification on the recordkeeping obligations under HFWA. Specifically, an employer must maintain and provide the following upon an employee’s request:
- the current amount of HFWA leave the employee has available; and
- the amount of HFWA leave they have already used during the year, including paid sick and safe leave and any supplemental public health emergency leave.
Practically, this means employers will need to appropriately track the type of leave each employee is utilizing. Employers must retain paid sick leave records for each employee for a two-year period.
Employer Considerations
Colorado employers are encouraged to:
- Review the updates released by the CDLE and determine applicability to their employees;
- Ensure related policies are up-to-date and train internal HR staff and managers on the new and continued requirements.
Additional Resources
- CO Department of Labor Press Release, January 6, 2022
- CO Wage Protection Rules, Effective January 1, 2021
- Healthy Families and Workplaces Act
- Sequoia Forewords:
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