Two New Colorado Bills Expand Paid Leave Coverage and Protect Employees Who Raise Health and Safety Concerns

Alerts / July 17, 2020

On July 14, 2020, Colorado Governor Jared Polis signed two bills requiring Colorado employers to take immediate action: the Healthy Families and Workspaces Act (HFWA) and the Public Health Emergency Whistleblower (PHEW) law.

HFWA Highlights and Employer Requirements

The HFWA expands paid leave coverage in a way that impacts nearly all Colorado employers, in both the short and longer terms. The HFWA incorporates and broadens federal leave requirements set forth in the Families First Coronavirus Response Act (FFCRA), which applies only to companies with 500 or fewer employees. Moreover, the prior Colorado HELP (Health Emergency Leave with Pay) law, which provided paid leave related to COVID-19 reasons in limited industries, ended on July 14 and in essence is replaced by the HFWA.

Effective July 15, 2020 – December 31. 2020, almost all Colorado employers, regardless of size or industry, must provide certain paid leave to employees for the following COVID-19-related reasons:

  • Having COVID-19 symptoms and seeking a medical diagnosis.
  • Being ordered by a government agent (federal, state or local) or advised by a health provider to quarantine or isolate due to a risk of COVID-19.
  • Taking care of someone else due to COVID-19 precautions – either someone ordered to quarantine or isolate or a child whose school or place of care or child care is closed or unavailable.

Full-time employees taking leave for COVID-19-related reasons are entitled to two weeks (80 hours) of paid leave at the employee’s regular pay rate and hours except when the employee takes time off to care for someone else. In that instance, the employer may limit the employee’s pay to two-thirds of the employee’s regular pay and hours. Part-time employees are also entitled to paid time off (PTO) based on a prorated amount calculated using the employee’s normal hours in a two-week period or, in the case of a part-time employee who works varied hours, the average hours worked over the six months before the leave. In the event that a part-time employee has not been employed for the entire prior six months, the calculation is based on the number of hours the employee agreed to work when hired.

The Colorado Department of Labor and Employment’s (CDLE’s) Division of Labor Standards and Statistics published interpretive guidance regarding the HFWA in effect from January 15, 2020 to December 31, 2020 which can be found here: Interpretive Notice & Formal Opinion (INFO) #6A.

Beginning January 1, 2021, Colorado employers with 16 or more employees must provide their employees, starting on the first date of employment, one hour of paid sick leave per 30 hours worked, with a maximum of 48 hours paid leave a year, for the following reasons:

  • Having a mental or physical illness, injury or health condition that prevents them from working.
  • Needing preventive medical care or to get a medical diagnosis, care or treatment of any mental or physical illness, injury or health condition.
  • Needing to care for a family member who has a mental or physical illness, injury or health condition or who needs the sort of care listed in the category.
  • The employee or the employee’s family member having been a victim of domestic abuse, sexual assault or criminal harassment and needing leave for related medical attention, mental health care or other counseling; victim services (including legal services); or relocation.
  • Due to a public health emergency, a public official having closed either (1) the employee’s place of business or (2) the school or place of care of the employee’s child, requiring the employee to be absent from work to care for the child.

In addition, in the event a public health emergency is declared, employers must provide full-time employees with an additional 80 hours (two weeks) of paid sick time and part-time employees with an amount equal to how much they are scheduled to work or work in an average 14-day period.

The CDLE’s Division of Labor Standards and Statistics published interpretive guidance regarding the HFWA in effect beginning January 1, 2021, which can be found here: Interpretive Notice & Formal Opinion (INFO) #6B. Note that this requirement joins a growing trend of jurisdictions requiring employers to provide paid sick leave. These new requirements are not limited to the current COVID-19 pandemic and provide paid sick leave on a broader scale.

Other key provisions in effect prior to December 31, 2020 (and in some cases after) include:

  • If an employee already received paid leave in 2020 for any of the three categories of COVID-19-related needs that the HFWA covers (including under the FFCRA), the employer can count that as part of the two weeks that the HFWA requires. But if the prior leave was at less than full pay for a condition in category 1 or 2 (the categories the HFWA requires full pay for), then it counts toward the HFWA requirement, with a discount for how much the pay was reduced.
  • Employers that already have equally or more generous leave policies, including PTO policies that can be used for any purpose, do not need to provide additional HFWA coverage.
  • An employer may not require an employee to provide notice in advance of needing to take paid leave. An employer may require “reasonable” notice “as soon as practicable” after the first workday (or portion thereof) when leave is taken. Notice may be verbal.
  • Employers may not retaliate against employees for using or attempting to use their PTO nor can they use a worker’s decision to take time off as a reason for discipline or termination.
  • Employers must (1) notify employees in writing of the right to take paid leave without retaliation (this can be done by providing, through electronic means, the informational poster or INFO #6A bulletin) and (2) display an informational CDLE poster (which must be replaced on January 1, 2021) “in a conspicuous and accessible” place in “each establishment” where employees work.

Beginning January 1, 2022, all employers, regardless of size, will be required to provide paid sick time to their employees.

Please note that there is no grace period, and employers must provide employees with paid leave as set forth in the HFWA and must provide employees with notice of the policy immediately.

PHEW Highlights and Employer Requirements

The PHEW law is intended to provide protection for employees and certain independent contractors from retaliation and/or discrimination if they raise health and safety concerns related to a public health emergency.

The bill prohibits a principal – which includes an employer, certain labor contractors, public employers and entities that rely on independent contractors for a specified percentage of their workforce – from discriminating, retaliating or taking adverse action against any worker who:

  • Raises any concern, opposes a violation of or assists in a proceeding about workplace health and safety practices or hazards related to a public health emergency to the principal, the principal’s agent, other workers, a government agency or the public if the workplace health and safety practices fail to meet guidelines established by a federal, state or local public health agency with jurisdiction over the workplace.
  • Voluntarily wears at the worker’s workplace the worker’s own personal protective equipment (PPE), such as a mask, a face guard or gloves.

A principal must allow workers to voluntarily wear their own PPE, provided that the PPE provides a higher level of protection than the principal-provided PPE, is recommended by a public health agency with jurisdiction over the workplace and “does not render the worker incapable of performing the worker’s job or prevent a worker from fulfilling the duties of a worker’s position.”

Workers may seek relief for a violation by filing a complaint with the CDLE’s Division of Labor Standards and Statistics, bringing an action in district court after exhausting administrative remedies or bringing a whistleblower action in the name of the state in district court after exhausting administrative remedies.

Employers must immediately post notice of workers’ rights under the PHEW law “in a conspicuous location on the premises.” The DOL CDLE poster is available here.

The CDLE’s Division of Labor Standards and Statistics published interpretive guidance regarding the PHEW law, which can be found here: Interpretive Notice & Formal Opinion (INFO) #5.

Authorship Credit: Nate Schacht and Laura Peterson

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