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The Healthy Families and Workplaces Act (“HFWA”) proscribes two different types of paid leave: paid sick leave and public health emergency leave (“PHEL”). This article addresses some of employers’ most frequently asked questions we have received since the enactment of the HFWA. Click here to read about the HFWA generally. Click here to learn about PHEL as it applies to the COVID-19 pandemic.

Does an existing PTO policy satisfy the HWFA paid leave requirements?

A policy providing paid leave, regardless of name, can satisfy the HFWA paid leave requirements so long as the policy provides as much time off as the HFWA requires and offers leave for all conditions and situations that the HFWA covers. Accordingly, a broader policy, such as a PTO policy that covers health-related and non-health related purposes, may suffice. In addition, an existing policy may not impose stricter notice and documentation requirements. Any employer who intends to use an existing PTO (or other leave) policy to satisfy the HFWA requirements must advise their employees in writing of their intent to do so prior to the date need for leave arises.

Can employees use HFWA paid sick leave for any purpose? Are mental health days acceptable?

No, HFWA paid sick leave is not general paid time off. Rather, under the statute paid sick leave need only be available for the following six purposes:

  1. The employee has a mental or physical illness, injury, or health condition that prevents the employee from working;
  2. A family member for whom the employee needs to provide care has a mental or physical illness, injury, or health condition;
  3. The employee or a family member for whom the employee needs to provide care needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
  4. The employee or a family member for whom the employee needs to provide care needs to obtain preventative medical care;
  5. The employee or the employee’s family member has been the victim of domestic abuse, sexual assault, or harassment and the employee must be absent from work to seek medical attention, obtain services from a victim services organization, obtain mental health or other counseling, seek relocation, or seek legal services; or
  6. A public official has ordered the closure of the employee’s place of business or the school or place of care of the employee’s child due to a public health emergency.

Accordingly, “mental health days” or “rest days” generally would not qualify as permitted purpose for using paid sick leave under the HFWA. However, if an employee has a diagnosed mental illness, is seeking a diagnosis for a mental illness, or seeking treatment for a mental illness, they may use HFWA paid sick leave.

If an employee used 80 hours of sick leave for COVID-related reasons in 2020, are they still entitled to 80 hours of public health emergency leave in 2021?

Yes. In 2020, employees were entitled to 80 hours of sick leave for COVID-related reasons under the federal Families First Coronavirus Response Act (“FFCRA”). FFCRA’s mandatory sick leave expired on December 31, 2020. As of January 1, 2021, all Colorado employees are entitled to two weeks of PHEL, which is calculated depending on the number of hours that employee regularly works during a two-week period (e.g. 80 hours for a full-time employee that regularly works 40 hours a week) under the HFWA for use during the COVID-19 public health emergency. Because these laws are completely separate, so are an employer’s obligations to provide paid leave. Accordingly, even if an employee used all 80 hours of FFCRA paid leave in 2020, they are still entitled to use PHEL during the COVID-19 public health emergency on and after January 1, 2021. That said, employees only get 2 weeks of PHEL as of January 1, 2021 for the COVID-19 public health emergency, regardless of whether such public health emergency extends into 2022.

Is PHEL separate from regular paid sick leave? If an employer already offers paid sick leave, do they still need to provide 80 hours of PHEL in addition?

Yes, PHEL is separate from HFWA paid sick leave, however, the two can be intertwined. On the date a public health emergency is declared (i.e. January 1, 2021 for the COVID-19 public health emergency), employers must assess each employee’s available HFWA paid sick leave (or other existing paid leave regardless of the name) and supplement each employee’s leave as necessary with PHEL to ensure that each employee has two weeks of leave available (e.g. 80 hours for a full-time employee).

For example, Employee A and Employee B are both full time employees. Employer offers PTO which may be used for any purpose (thereby qualifying as both HFWA paid sick leave and PHEL). On the date a public health emergency is declared, Employee A has 120 hours of PTO available and Employee B has 30 hours of PTO. Because full time employees must have at least 80 hours of PHEL available on the date a public health emergency is declared, the employer must supplement Employee B’s PTO balance with 50 hours of PHEL. Employee A’s current PTO balance (120 hours) exceeds the 80-hour requirement, so Employee A does not receive any PHEL.

During the public health emergency, each employee may use up to two weeks of leave as PHEL. Thus, both Employee A and Employee B may use up to 80 hours of leave as PHEL (regardless of whether such leave was originally PTO or PHEL). However, the PTO may also be used for regular PTO purposes, such as vacation or non-HFWA reasons. After the public health emergency is suspended or terminated, any remaining supplemental PHEL (such as Employee B’s 50 hours) expires. Such PHEL is not paid out to the employee, it simply disappears.

Finally, although there is significant overlap, the permitted uses of HFWA paid sick leave and PHEL vary. PHEL may be used for the following purposes:

  1. Needing to self-isolate due to either being diagnosed with, or having symptoms of, COVID-19;
  2. Seeking a diagnosis, treatment, or care (including preventative care) for COVID-19;
  3. Being excluded from work by a government health official, or by an employer, due to the employee having exposure to, or symptoms of COVID-19 (whether or not they are actually diagnosed with COVID-19);
  4. Being unable to work due to a health condition that may increase susceptibility or risk to COVID-19; or
  5. Caring for a child or other family member in category 1, 2, or 3, or whose school, childcare provider, or other care provider is unavailable, closed, or providing remote instruction due to the COVID-19 public health emergency.

If an employee uses all of their paid leave for non-HFWA purposes and then contracts COVID, does the employer need to provide extra paid leave?

No. Suppose an employer uses a paid leave policy that is broader than HFWA paid sick leave, such as a PTO policy, to satisfy the HFWA requirements. Under this policy, PTO is available for the HFWA purposes as well as vacation and personal time. To continue the earlier example, let’s look at Employee A who, as of January 1, 2021 (the declaration date of the COVID-19 public health emergency), has 120 hours of PTO available. As discussed above, Employee A does not receive any supplemental PHEL. Now, suppose that Employee A decides to use all of his available PTO for vacation. Upon returning from vacation, Employee A contracts COVID-19 at the airport. The employer does not need to provide Employee A with any additional paid leave for COVID. Employee A must use unpaid leave until further PTO is accrued, even though he is absent for a COVID-related reason.

What is written here is intended as general information and is not to be construed as legal advice. Further, such guidance is current as of February 24, 2021. Any changes in federal law governing COVID-related leave could impact the information provided above. If legal advice is needed, you should consult your Ireland Stapleton attorney.

For more information contact employment law attorney Michelle B. Ferguson at 303-628-3658, mferguson@irelandstapleton.com or employment law attorney Josephine B. Reid at 303-628-3674, jreid@irelandstapleton.com.