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.
Earlier this year, Colorado enacted a complex paid sick leave law, the Healthy Families and Workplaces Act (HFWA), which requires Colorado employers to provide three distinct types of paid sick leave:
- up to 80 hours of COVID-19 emergency paid sick leave (CO-EPSL);
- up to 48 hours of paid sick and safe time (PSST); and
- supplemental public health emergency paid sick leave (PHEL) (up to a maximum of 80 hours).
The CO-EPSL portion of the law is in effect from July 15, 2020 through December 31, 2020, while the remaining two portions—PSST and PHEL—imminently take effect on January 1, 2021. Accordingly, as 2021 fast approaches, Colorado employers have been making arrangements to sunset their CO-EPSL programs and transition to the new regime of PSST and PHEL.
But one overarching question remained: does the COVID-19 public health emergency, which was declared on March 11, 2020 in Executive Order D 2020 003—more than four months before the HFWA originally took effect—trigger employers’ obligations to provide public health emergency leave in 2021? On December 23, 2020, the Colorado Department of Labor and Employment (CDLE) issued guidance in the form of Interpretative Notice & Formal Opinion #6C (INFO 6C) and emergency revisions to the Wage Protection Rules, 7 CCR 1103-7. Its answer? Yes. Employers must provide employees access to up to 80 hours of PHEL as of January 1, 2021 due to the COVID-19 public health emergency.
In support of this position, CDLE points to the original declaration of a public health emergency in Colorado, Executive Order D 2020 003, which has been extended multiple times, most recently in D 2020 268, which extends the emergency through December 27, 2020. Presuming that the governor extends the public health emergency for yet another four weeks (which is quite likely), it will reach until at least January 24, 2021 – triggering PHEL obligations as of January 1, 2021.
The PHEL portion of the law requires employers to provide employees access to up to 80 hours of supplemental leave from the day a public health emergency (PHE)1 is declared until four weeks after the PHE ends. Employees can access this supplemental leave 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) 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 in category (1)-(3), or whose school or child care is unavailable due to the PHE.
Employers can count any accrued but unused PSST hours employees have on the date the PHE is declared toward the supplemental amount of PHEL they must provide to employees. For example, employers that frontload 48 hours of PSST on January 1, 2021 will be required to supplement their employees’ sick leave banks with up to an additional 32 hours of PHEL. In contrast, if an employer intended to have their employees accrue time for 2021, and the employee starts out the year with a zero balance of PSST, the employer will be required to supplement their employees’ sick leave banks with up to 80 hours of PHEL, and the employee will continue to accrue PSST at a rate of 1 hour for every 30 hours worked, up to the 48-hour annual accrual cap.
Employers need only provide the PHEL supplement once during the entirety of a PHE. Once employees exhaust their supplemental PHEL, the law does not entitle them to any additional leave for that same PHE. In consequence, in the (hopefully unlikely) scenario that the COVID-19 PHE extends into 2022, and an employee had used their entire PHEL allotment during 2021, they would not be entitled to additional PHEL in 2022.
INFO 6C also makes clear that employers cannot credit any CO-EPSL provided to employees during 2020 against their 2021 PHEL obligation. According to the CDLE, the PHEL obligation in 2021 “is a [n]ew [s]upplement of up to 80 hours,” even if employees used 80 hours of CO-EPSL for their own quarantine in 2020.
Small employers may have believed themselves to be exempt from the PHEL provisions in 2021 prior to this new CDLE guidance, because under the HFWA, small employers—those with 15 or fewer employees—do not need to provide the 48 hours of PSST until 2022. Importantly, however, INFO 6C requires that all Colorado employers, regardless of size, provide employees access to PHEL in 2021. Thus, even though small employers do not have to provide PSST hours to employees, they will be required to provide their employees with the required PHEL hours.
1 The HFWA 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 a federal, state or local public health emergency; 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.