On July 14, 2020, Governor Jared Polis signed the Healthy Families and Workplaces Act (“Act”) into law, which applies to both public and private employers. The Act fundamentally changes the employment landscape regarding paid sick leave (“PSL”). Effective July 15, 2020, all Colorado employers, regardless of size, must comply with the federal Emergency Paid Sick Leave Act. See our article on the Families First Coronavirus Response Act for more details. Effective January 1, 2021, for employers with 16 or more employees and effective January 1, 2022, for employers with fewer than 16 employees, all employers in Colorado, must provide employees with PSL, which accrues at a minimum rate of one hour of PSL for every 30 hours worked, up to a maximum of 48 hours of PSL per year. Employers may choose to provide employees with 48 hours of PSL upon commencement of employment and annually thereafter, instead of tracking accrual of PSL. Employers also must provide full-time employees with an additional 80 hours of PSL upon the declaration of a public health emergency (or a pro-rated amount for employees who regularly work less than 40 hours per week).
Under the Act, an employee begins accruing PSL upon commencement of employment (or may receive an allotment of 48 hours upon hire), may use their PSL as it accrues, and may carry unused PSL forward to subsequent years (though the employer is not required to allow an employee to use more than 48 hours of PSL in a year). PSL is required to be used in hourly increments (unless the employer allows paid leave to be used in smaller increments). Employees are required to provide as much notice as is reasonable in advance of the need for leave and, where appropriate, to make a reasonable effort to schedule the use of such leave to minimize disruption to the employer’s operations. For PSL of four or more consecutive days, the employer may require reasonable documentation of the need for leave. Upon separation of employment for any reason, any accrued but unused PSL is not paid out.
PSL may be used for the following purposes:
- The employee has a mental or physical illness, injury, or health condition that prevents the employee from working;
- A family member for whom the employee needs to provide care has a mental or physical illness, injury, or health condition;
- 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;
- The employee or a family member for whom the employee needs to provide care needs to obtain preventative medical care;
- 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
- 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.
For purposes of the Act, a family member is defined as an immediate family member including any person related by blood, marriage, civil union, or adoption. The definition also encompasses a guardianship relationship and specifically includes a person for whom the employee is responsible for providing or arranging health- or safety-related care.
An employer with an existing paid leave policy may satisfy the requirements of the Act and is not required to provide additional PSL if the employer: (1) makes available to its employees two weeks of paid leave for a public health emergency; (2) has a paid leave policy that provides at least one hour of paid leave for every 30 hours worked for a maximum of 48 hours of paid leave per year; and (3) allows employees to use the paid leave for the purposes outlined above. The Act encourages employers to provide more generous leave than the minimum requirements outlined in the Act. The Act also makes clear that employers may not diminish their current leave policies, which may be more generous than the PSL provided under the Act, as a result of the Act.
PSL is paid out at the employee’s same hourly rate or salary, not including overtime, bonuses or holiday pay. The Act further outlines how to calculate such hourly rate for employees who are paid on a commission basis.
The Act sets forth various technical requirements. First, employers must provide employees with written and poster notice regarding their PSL rights. The Colorado Department of Labor and Employment has published notices for employers to utilize. All Colorado employers should post the linked poster immediately. Second, employers must maintain personnel records for a period of two years that documents the employee’s hours worked, amount of PSL accrued, and amount of PSL used. Finally, the Act prohibits retaliation against an employee for exercising their PSL rights.
The Act does not apply to employees covered by a collective bargaining agreement (“CBA”) if employees’ rights under the Act are expressly waived in the CBA and the CBA provides equivalent or more generous PSL.
Going forward, employers must take prompt action to review their existing paid leave policies and/or implement new PSL policies to ensure compliance with the Act.
What is written here is intended as general information and is not to be construed as legal advice. If legal advice is needed, you should consult an attorney.