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The federal government has declared a new Public Health Emergency (“PHE”) in response to the emergence of Monkeypox in the United States. This action triggers the Healthy Families and Workplaces Act (“HFWA”) which requires employers to provide up to 80 hours paid public health emergency leave to employees automatically (i.e., without requiring employees to “earn” or accrue hours) during a Public Health Emergency.

For quick reference, you can find our responses to HFWA frequently asked questions here.

Several sources have indicated that the administration’s decision to declare a PHE was focused on increasing federal grant funding to states in an effort to release vaccines faster, while stressing that Monkeypox appears to have less severe impacts on individuals and be much less contagious compared to COVID-19.

Although the HFWA was drafted in response to COVID-19, it expressly contemplates the occurrence of other pandemic or mass health events that could spur PHEs on a state or federal level. Thus, an employee’s need for time off related to any “communicable illness that is the cause of a public health emergency,” which now includes Monkeypox, will trigger the public health emergency leave provisions of the HFWA. As a reminder, leave must be available once per public health emergency. As stated in prior articles, the federal COVID-19 PHE was recently extended through October 2022. Now that there are two PHEs in place, unless guidance is issued by the Colorado Department of Labor and Employment to the contrary, employers will have to track leave usage separately for COVID-19 and Monkeypox.

Employers are permitted to count any accrued, unused paid sick leave towards the public health emergency leave requirement. Thus, if an employee who normally works at least 40 hours per week has earned 30 hours of paid sick leave and then requires public health emergency leave related to Monkeypox, COVID-19, or any other communicable disease that is the cause of a PHE, the employer must provide an additional 50 hours of paid leave to be used under any of the enumerated reasons contained in the HFWA for each PHE.

Non-exempt employees who do not regularly work more than 40 hours per week are entitled to “either the amount of time the employee is scheduled to work in a fourteen-day period or the amount of time the employee actually works on average in a fourteen-day period,” whichever is greater.

Employers should anticipate the need for paid public health emergency leave for either COVID-19 or Monkeypox. Accurate tracking and recording of employees’ use of public health emergency leave and the reasons therefore will ensure employees get the leave benefits required under HFWA while protecting employers from over-compensation.

For more information on how public health emergency leave or The Healthy Families Workplaces Act affects your business and your employees, please contact Michelle B. Ferguson, mferguson@irelandstapleton.com or Jennifer M. Kinkade, jkinkade@irelandstapleton.com.

What is written here is for general information only and should not be taken as legal advice. If legal advice is needed, please consult an attorney.