Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
At the outset of the COVID-19 pandemic, a number of jurisdictions enacted sick leave laws specifically designed for absences due to COVID-19. Some states, however, enacted permanent changes to their leave laws that apply during a “public health emergency,” which can apply both to COVID-19 as well as other public health emergencies.
With reports of higher-than-average respiratory syncytial virus (RSV) and flu transmission, some of these public health emergency provisions are being triggered, including in both Colorado and Oregon. In such jurisdictions, employees have additional rights, potentially including paid sick leave and job protection for covered absences.
Colorado Expands Public Health Emergency Leave to Include Absences Relating to RSV, Flu, and Other Respiratory Illnesses
Under Colorado’s Healthy Families and Workplaces Act (HFWA), employers are required to provide employees access to up to 80 hours of paid sick leave when a public health emergency (PHE)1 has been declared. Employees can access this PHE leave (PHEL) if they are:
- self-isolating or excluded from the workplace due to exposure, symptoms, or diagnosis of the communicable illness in the PHE;
- seeking a diagnosis, treatment, or care (including preventive care, such as vaccination) of such an illness;
- 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 member who is in category (1)-(3), or whose school or childcare is unavailable due to the PHE.
Colorado’s governor first declared COVID-19 a public health emergency on March 11, 2020, and this emergency declaration—which has since been amended dozens of times—remains in effect. That means that since January 1, 2021 (when the public health emergency leave portion of the HFWA took effect), Colorado employees have had access to PHEL in connection with COVID-19.
The most recent amendment to the governor’s emergency declaration issued on November 11, 2022 expands this public health emergency to cover not only COVID-19, but also RSV, influenza, and “other respiratory illnesses” in Colorado—an undefined term that could, in theory, encompass anything from whooping cough to the common cold.
This means that all Colorado employers must provide up to 80 hours of paid PHEL for absences relating to all of these illnesses. Notably, the state labor department confirmed in a statement on its website that this amendment does not create a fresh bucket of 80 hours of PHEL: “The expansion beyond COVID doesn’t give employees an extra 80 hours for those conditions, it just means they can use their 80 hours for a broader range of conditions.”
Nonetheless, if Colorado employees have not yet exhausted their 80-hour entitlement to PHEL, that leave can now be used in connection with flu, RSV, or other respiratory illnesses in addition to COVID-19. Further, absences for PHE-qualifying reasons are job-protected, and employers cannot require documentation from employees to show that leave is for PHE-related needs. All Colorado employees thus now have a right to paid sick leave of up to 80 hours for essentially any respiratory illness. This entitlement will remain in effect until four weeks after the current public health emergency declaration expires.2
RSV Emergency Declaration Triggers Protections Under Oregon’s Mini-FMLA
Oregon’s governor declared a public health emergency November 14, 2022, in response to an increase in pediatric cases of RSV. The declaration will remain in effect through March 6, 2023, unless it is extended or terminated earlier by the governor.
In January 2022, changes to Oregon’s Family Leave Act (OFLA) went into effect that defined a public health emergency and expanded sick child leave. The amendments clarified that a “public health emergency” requires a proclamation by the governor to protect public health. Sick child leave, under OFLA, is leave requiring home care (such that you might see with RSV, cold, flu, etc.), but that does meet the definition of a serious health condition. The amendments expanded “sick child leave” to include the need to provide home care due to the closure of the child’s school or childcare provider due to a public health emergency and includes requirements for verification of a school closure. The amendments also changed the OFLA so that Oregon employers must provide sick child leave to eligible Oregon employees after just 30 days of employment, rather than 180, if the employee has worked an average of 25 hours per work in the 30 days before taking leave during a public health emergency.
Employers with Colorado and Oregon operations now have additional leave obligations. Absences due to RSV, the flu, or other respiratory illnesses, however, will not likely be contained to these two states. In addition to monitoring announcements from other states and cities, employers might want to consider re-familiarizing themselves with existing laws like paid sick leave, paid (or unpaid) family and medical leave, school activities leave, “emergency” leave, and kin care, that may cover absences due to COVID-19, RSV, flu, and similar illnesses.
1 A “public health emergency” is defined to include (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 a federal, state, or local public health agency, or a disaster emergency is declared by the governor; or (2) a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.
2 The Colorado Department or Labor and Employment advises that the PHE emergency will continue until at least February 2023, meaning that the entitlement to provide PHEL will likely extend until at least March 2023.