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.
On February 23, 2021, the Colorado Department of Labor and Employment (“CDLE” or the “Division”) issued revisions to the Wage Protection Rules, 7 CCR 1103-7, relating to Colorado employers’ paid sick leave obligations under the Healthy Families and Workplaces Act (“HFWA”). While the updates to the rules were not voluminous—the Division only made a handful of changes to the last version of the rules—they are nonetheless material, particularly with respect to the obligation to provide public health emergency leave.
The HFWA requires Colorado employers to provide at least 48 hours of paid sick and safe leave (“PSSL”) each year on either an accrual basis based on hours worked or frontloaded annually. The new rules do not in any way alter this requirement.
In addition to this requirement, though, the law also requires all Colorado employers to provide employees access to up to 80 hours of public health emergency leave (“PHEL”) upon the declaration of a public health emergency by federal, state, or local authorities. In its last iteration of the Wage Protection Rules, the CDLE confirmed that the current COVID-19 public health emergency triggers the requirement to provide PHEL.1 There remained a number of ambiguities in the text of the rules, however, particularly with respect to how much PHEL new hires or part-time employees are entitled under the law. While some ambiguities remain, the CDLE clarified some issues for employers.
First, the rules make clear that the amount of PHEL to which part-time employees are entitled is tied to when the employee requests PHEL. Full-time employees (employees who work at least 40 hours per week) are entitled to 80 hours of PHEL under the law, but it was previously unclear what amount of PHEL employers needed to provide to part-time employees. The statute’s text and the prior version of the rules provided that such employees were entitled to leave equal to the amount they work in a 14-day period, but it was unclear to which actual 14-day period this language referred. The rules now provide that part-time employees receive PHEL in “the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request, or (b) actually worked in the 14-day period prior to the declaration of the public health emergency or the leave request, whichever is later.”2
Having the amount of PHEL part-time employees receive tied to when they request PHEL makes compliance less challenging and fosters administrative ease for employers. By pegging the calculation to an employee’s “live” need for leave, the calculation produces a result that represents the employee’s current working situation, unlike, for example, what the employee might have been working months ago. Importantly, by tying the calculation to an actual need to use leave, employers can reduce time staff must spend calculating leave that might never be used and instead can more effectively use their time addressing critical business needs during a public health emergency and assisting employees with their actual needs.
The second change makes clear that employees who are hired during a public health emergency are entitled to PHEL. A plain reading of the prior version of the rules—which tied PHEL entitlement to the amount of hours an employee worked prior to the declaration of a public health emergency, or the 14-day period before or after January 1, 2021—would have excluded employees hired on or after January 15, 2021 from being eligible for PHEL. Thus, the CDLE’s revised language makes clear that all employees are entitled to PHEL regardless of their date of hire, because PHEL eligibility is linked to when the employee requests leave.
Lastly, while these rules do not take effect until April 14, 2021, employers can rely on them immediately. The Statement of Basis issued by the Division concurrently with the new Rules indicates that its modifications to the rules “clarify, but do not change, substantive rights or responsibilities” under the law. In other words, because the new rules simply clarify but do not alter substantive rights, they can be relied upon on a going-forward basis.
1 These rules are addressed in further detail in Littler’s prior article entitled “Colorado Confirms COVID-19 Triggers Public Health Emergency Leave Under the Healthy Families and Workplaces Act,” available here.
2 See 7 CCR 1103-7 at Rule 3.5.1(C)(2) (emphasis added).