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.
UPDATE: The the Healthy Families & Workplaces Act (HFWA) became law on July 15, 2020, replacing the HELP Rules, which expired after July 14, 2020. The HFWA, in part, requires employers to notify employees of emergency paid sick leave (EPSL) the HFWA requires from July 15 through December 31, 2020 (poster available in English & Spanish). Monitor littler.com for forthcoming additional information concerning the HFWA's EPSL requirements.
The Colorado legislature recently passed SB20-205, the Healthy Families and Workplaces Act (“HFWA”), which will require all Colorado employers to provide three types of paid sick leave: 1) COVID-19 emergency paid sick leave (“CO-EPSL”); 2) Paid sick and safe time (“PSST”); and 3) Public health emergency paid sick leave (“PHEL”). Governor Jared Polis (D) is expected to sign the HFWA, which generally will take effect immediately upon his signature, although certain provisions will not take effect until 2021 or 2022, depending on how many employees an employer has. Although some paid sick jurisdictions have enacted separate emergency (and temporary) paid leave laws, and other jurisdictions are exploring adding an emergency leave component to their existing paid sick leave law, this built-in tripartite law would be the first of its kind.
Covered Employers and Employees
All three paid leave programs under the HWFA will apply to all private employers that have an employee who works in Colorado.
Under the HFWA, an employee is any person, including a migratory laborer, performing labor or services for an employer’s benefit. The law does not apply to independent contractors or to employees subject to the federal Railroad Unemployment Insurance Act.
For employers with unionized workforces, there are potential exceptions that vary depending on when the parties agree on a collective bargaining agreement (CBA). The HWFA does not apply to employees covered by a CBA in effect on the law’s effective date if the CBA provides for equivalent or more generous paid sick leave for employees the CBA covers. For those covered by a CBA initially negotiated, or negotiated for the next CBA, after the law’s effective date, the law does not apply if the HWFA’s requirements are expressly waived in the CBA and the agreement provides for equivalent or more generous paid sick leave for CBA-covered employees. Given these provisions reference the entire HWFA, rather than simply the PSST provisions, the Colorado Department of Labor and Employment (“CDLE”) will need to clarify whether and how parties in a collective bargaining relationship can agree to waive the law's requirements.
COVID-19 Emergency Paid Sick Leave (CO-EPSL)
The HFWA requires all employers in Colorado to comply with the substance of the federal Emergency Paid Sick Leave Act (EPSLA) in the Families First Coronavirus Response Act (FFCRA) by essentially extending the FFCRA’s paid sick provisions (applicable to 499 or fewer employees) to employers with 500 or more employees. The HFWA thus obligates larger employers to provide emergency paid sick leave in the amount, and for the purposes, provided for in the FFCRA.
CO-EPSL is in effect upon signing by the Governor through December 31, 2020. Accordingly, employers for whom the EPSLA does not apply—those with 500 or more employees—will now be required to comply with the EPSLA, albeit without available tax relief. Additionally, employers with 499 or fewer employees that federal law allows to exclude certain employees from the EPSLA will need to comply, though they might simply elect to undo the election and comply with federal law so they can receive federal tax relief for providing leave.
As a quick reminder, the EPSLA contained in the FFCRA requires covered employers provide up to 80 hours of FFCRA paid sick leave to covered employees who are unable to work or telework because they:
- are subject to a federal, state, or local quarantine or isolation order related to COVID-19, or are caring for an individual subject to such an order;
- have been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or are caring for an individual so advised;
- are experiencing symptoms of COVID-19 and seeking medical diagnosis;
- are caring for a child whose school or place of care is closed, or whose child care provider is unavailable, due to COVID-19 related reasons; or
- are experiencing any other substantially-similar condition that may arise, as specified by the U.S. Secretary of Health and Human Services (as yet unexplained).
Notably absent from the HWFA is any reference to whether and how now-covered employers can offset their leave obligation due to leave they provided employees under Colorado’s Health Emergency Leave with Pay (HELP) Rules, i.e., COVID-19 paid leave the state already requires for many employers. The CDLE hopefully will clarify this open question.
Paid Sick & Safe Time (PSST)
Colorado is lucky number 13 in terms of statewide paid sick and safe time mandates (not to mention the dozens of separate city and county mandates across the country). The PSST mandate will first apply to employers with 16 or more employees beginning on January 1, 2021, and then apply to all employers on January 1, 2022.
When employment begins, employees must accrue at least one hour of PSST for every 30 hours they work, up to a maximum of 48 hours per year. Overtime-exempt employees accrue based on a 40-hour workweek, or their regular workweek if it involves fewer hours. Alternatively, at the beginning of the year, employers can provide an amount of PSST that meets or exceeds the law’s requirements. Unlike many paid sick and safe time laws, the HWFA does not address whether frontloading relieves employers of their carry-over obligation, so we hope the CDLE addresses this issue. Generally, up to 48 hours of accrued, unused PSST hours carries forward to a subsequent year.
The HWFA contains a “using existing policy” provision, as is common in PSST laws. However, because of how the HFWA differs from a traditional PSST law, its provision is unique. Employers with a paid leave policy are not required to provide additional paid sick leave to employees if they: 1) make available an amount of paid leave sufficient to meet the PSST and the public health emergency leave (PHEL) requirement (discussed in the next section); and 2) allow employees to use paid leave for the same purposes and under the same conditions as provided by the HWFA. Both because PHEL may not be a common paid leave component and the HWFA factors in PSST when determining the amount of PHEL to provide, the CDLE should offer guidance on whether and how existing paid leave programs may qualify.
Under the HFWA, employers cannot impose a waiting period before employees can use leave. Instead, employees may use leave as it accrues, up to 48 hours in a year unless an employer allows them to use more. Employees must use leave in hourly increments unless their employer permits them to use leave in smaller increments. Employees can use leave for the following “sick” time purposes:
- mental or physical illness, injury, or health condition of the employee or family member;
- medical diagnosis, care, or treatment related to an employee's or family member's illness, injury, or condition; or
- preventive medical care.
Additionally, if an employee or family member is the victim of domestic abuse, sexual assault, or harassment, employees can use leave for the following “safe” time purposes:
- seeking medical attention to recover from a mental or physical illness, injury, or health condition caused by the domestic abuse, sexual assault, or harassment;
- obtaining services from a victim services organization;
- obtaining mental health or other counseling;
- seeking relocation due to the domestic abuse, sexual assault, or harassment; or
- seeking legal services, including preparing for or participating in a civil or criminal proceeding relating to or resulting from the domestic abuse, sexual assault, or harassment.
Finally, employees can use leave for “other” reasons: due to a public health emergency, or if a public official orders the closure of an employee’s place of business or the school or place of care of an employee’s child and the employee needs to care for the child.
The HWFA’s family member definition is very broad. It includes an employee’s immediate family member (a person related by blood, marriage, civil union, or adoption), a child to whom the employee stands in loco parentis, a person who stood in loco parentis to the employee when the employee was a minor, and a person for whom the employee is responsible for providing or arranging health- or safety-related care.
Employers must allow employees to use leave upon an employee’s request, which may be made orally, in writing, electronically, or by any other means acceptable to the employer, and, when possible, must include the absence’s expected duration. When leave use is foreseeable, employees must make a good faith effort to provide notice of the need for leave in advance, and must make a reasonable effort to schedule leave in a manner that does not unduly disrupt the employer’s operations. An employer may provide a written policy that contains reasonable procedures for employees to provide notice for foreseeable absences, but cannot deny leave based on noncompliance with the policy. For leave lasting four or more consecutive work days, an employer may require reasonable documentation that the employee used leave for a covered purpose.
Employers must pay leave at the same hourly rate or salary and with the same benefits—including health care benefits—as the employee normally earns during hours worked, but the “same hourly rate or salary” does not include overtime, bonuses, or holiday day. Outside of the general pay standard, the HWFA addresses pay requirements only for employees earning commissions. Employers must pay commission-only employees no less than the applicable minimum wage, whereas employees paid an hourly, weekly, or monthly wage and paid on a commission basis are paid their hourly, weekly, or monthly wage or the applicable minimum wage, whichever is greater.
Employers need not cash out unused PSST when employment ends, with one narrow exception: if retaliatory personnel action prevented the individual from using leave, the aggrieved employee may recover such leave. If an employee separates from employment but is rehired within six months, employers must reinstate the employee’s previously unused PSST.
Public Health Emergency Leave (PHEL)
In addition to PSST, in the event of a public health emergency, employers must supplement an employee's PSST to ensure the employee may take the following amounts of leave:
- 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: At least 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.
Employers may count an employee’s unused PSST toward the PHEL the law requires. The HWFA provides that employees are eligible for PHEL in the above amount only once during the entirety of a public health emergency (PHE), even if the PHE is amended, extended, restated, or prolonged.
The HFWA defines a “public health emergency” to be:
- an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious act, for which: 1) a disaster emergency is declared by the governor; or 2) an emergency is declared by a federal, state, or local public health agency;
- a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.
Employees can use PHEL for any of the following reasons:
- to self-isolate and care for oneself (or a family member who is self-isolating) because the employee (or family member) is diagnosed with, or experience symptoms of, the communicable illness that is the cause for the PHE;
- to seek or obtain (or care for a family member who needs) medical diagnosis, care, or treatment if experiencing symptoms associated with a communicable illness that is the cause of the PHE;
- to seek (for oneself or a family member) preventive care concerning a communicable illness that is the cause of the PHE;
- if the individual's presence on the job or in the community would jeopardize the health of others because of the individual's exposure to the communicable illness or because the employee is exhibiting symptoms of the communicable illness (regardless of diagnosis), as determined by local officials with such authority or the employee's or covered relation's employer;
- to care for a child or other family member when the child’s care provider is unavailable due to a PHE, or if the child's or family member's school or place of care has been closed by a local, state, or federal public official or at the discretion of the school or place of care due to a PHE, including if a school or place of care is physically closed but providing instruction remotely; or
- if an employee is unable to work because the employee has a health condition that may increase susceptibility to or risk of communicable illness that is the cause of the PHE.
An employee may use PHEL until four weeks after the official termination or suspension of the public health emergency.
Employees must notify their employer of the need for PHEL as soon as practicable when the need for leave is foreseeable and the employer’s place of business has not been closed. Employees need not supply documentation to take leave.
Notably, the HWFA does not provide a specific date by when the PHEL leave requirement begins. Given the HWFA’s CO-EPSL provisions will apply until December 31, 2020, and the PHEL provisions reference being in addition to PSST, which does not start for some employers until January 1, 2021, logically it would make sense for the PHEL provisions to become applicable no sooner than 2021, after the EPSL provisions expire. In light of the potential confusion, employers hope the CDLE will clarify this issue.
Notice, Posting & Recordkeeping
Employers must notify employees they are entitled to paid sick leave under the HWFA. The notice must: 1) specify the amount of paid sick leave to which employees are entitled and the terms of its use under the law; and 2) notify employees that employers cannot retaliate against them for requesting or using paid sick leave and that they have the right to file a complaint or bring a civil action if paid sick leave is denied or suffer retaliation. Employers must supply each employee a written notice, and consciously display a CDLE-created poster containing the above information in English and in any language that is the first language spoken by at least 5% of the employer’s workforce. If an employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, the employer must provide the notice-poster through electronic communication or a conspicuous posting in the web-based platform. If an employer’s business is closed due to a public health emergency or a disaster emergency due to a public health concern, however, the notice-posting requirement is waived for the period during which the business is closed.
For a two-year period, employers must retain records for each employee documenting hours worked, paid sick leave accrued, and paid sick leave used under the HFWA. If an issue arises as to an employee’s right to paid sick leave and the employer has not maintained or retained adequate records, or does not allow the CDLE reasonable access to such records, the employer is presumed to have violated the law unless it demonstrates compliance by a preponderance of the evidence.
Any agreement by an employee to waive the employee’s rights under the law is void as against public policy (except for CBA waivers, presumably). Employers cannot require, as a condition of providing paid sick leave, that an employee search for or find a replacement worker to cover their absence.
Employers cannot count paid sick leave as an absence that may lead to, or result in, discipline, discharge, demotion, suspension, or any other retaliatory personnel action against the employee. Additionally, employers cannot retaliate or discriminate against an employee or former employee because the person exercised, attempted to exercise, or supported the exercise of, protected rights, which include the right to: 1) request or use paid sick leave; 2) file a complaint with the CDLE or court or inform any person about an alleged violation; 3) participate in an investigation or proceeding or cooperate with the CDLE; or 4) inform any person of the their potential rights under the HWFA. Protections also apply to any person who in good faith, but mistakenly, alleges a violation. Retaliatory personnel action is broadly defined and includes, e.g., reducing hours, threatening to report the suspected citizenship or immigration status of an employee or employee's family member, and sanctions against employees who are public benefits recipients.
Penalties, Damages & Enforcement
Employees can file a complaint with the CDLE or a private lawsuit. Before they can file suit, however, employees must submit a complaint to the department or make a written demand for compensation or other relief to the employer. The employer has 14 days to respond after receiving the written demand or receiving notice from the CDLE of a complaint.
In terms of penalties, the HWFA expressly includes a civil fine payable to the state of up to $100 for willful notice and/or posting violations; for the former, it is a fine for each separate violation. Damages available include back pay, legal and equitable relief—such as employment reinstatement, promotion, pay increase, payment of lost wage rates, and liquidated damages—and an employee’s reasonable costs, including attorneys’ fees. Under the HWFA, if an investigation of retaliation or interference yields a determination that multiple employees’ rights were violated, the violation against each employee is a separate violation for purposes of fine, penalties, or other remedies. If a violation costs an employee their job or pay, a determination may include an order to reinstate the employee, to pay the employee’s lost pay up to reinstatement or for a reasonable period if reinstatement is not feasible, or both.
Because the CO-EPSL provisions will take immediately if the Governor signs the bill, employers should actively monitor the Governor’s website. Additionally, they should monitor the CDLE’s website for guidance, model notices and/or posters, and information about when/if the Colorado HELP rules will expire.
The immediate nature of the EPSL provisions will require employers to implement quickly CO-EPSL-compliant policies and practices, or to revise policies and procedures they used to comply with the Colorado HELP rules. Employers will have more time (but not a lot) to develop PSST and PHEL policies, or to determine whether and how their existing paid leave policies may satisfy the HWFA's requirements. For multi-state or nationwide employers, an additional challenge awaits during these more-than-challenging times. Given this new and complicated law, employers should consider contacting knowledgeable employment counsel to help them navigate the latest—but not last—paid leave compliance obligation.