On June 2, 2023, Colorado Governor Jared Polis signed into law Senate Bill 23-017 expanding the allowed reasons for use under the state’s Healthy Families and Workplaces Act (HFWA) and adding bereavement leave, but maintaining the leave entitlement at its current level. Previous alerts on the HFWA are copied below for reference.

• The amendments take effect on August 7, 2023.
• New covered reasons for use include:
  • Grieving, attending funeral/memorial services, or dealing with financial and legal matters connected with a death of a covered family member
  • Caring for a family member whose school or place of care is closed as a result of an unexpected occurrence
  • Evacuating the employee’s place of residence due to natural disaster or unexpected event that creates a need to evacuate

Colorado HFWA INFO #6A and 6B (originally sent August 2020)

The Colorado Department of Labor and Employment (CDLE) has released Interpretive Notices and Formal Opinions (INFO) regarding the Healthy Families and Workplaces Act (HFWA). The guidance was released in two parts, INFO #6A (for 2020) and INFO #6B (for 2021), along with a model notice and poster that employers can use to satisfy the law’s posting requirements in 2020. Guidance in the INFOs is non-bindingand does not supersede the requirements as stated in the text of the HFWA.

• The obligation for all employers to provide emergency public health emergency leave (PHEL) took effect with the enactment of the HFWA, simultaneously with the obligation to provide non-COVID paid sick leave (PSL). The PHEL obligation extends and replaces the obligation under the now-defunct HELP rules, which applied only to specific industries. There is an offset provision (described below) for leave previously  granted by employers under the HELP rules.
• The 2020 PHEL obligation and the obligation for years going forward are addressed in separate provisions of the HFWA:
  • 2020: Employers not covered under the FFCRA must provide a new bank of 80 hours of PHEL that can be used for the reasons outlined in the FFCRA. This provision expands FFCRA requirements to all Colorado employers; it does not create a new leave obligation for employers already covered under the FFCRA.
  • 2021: If a declared public health emergency is in effect, employers must ensure that all employees have access to a total of two weeks’ worth of paid sick leave: their regular accrual to be used for purposes outlined in the PSL provisions of the HFWA (see below), and additional hours available for purposes related to the public health emergency, outlined in the PHEL provisions. Employers may choose to make accrued, unused PSL available to employees to satisfy the PHEL requirements.
• The guidance clarifies that employer size is based on the number of employees nationally. Employers with 16 or more employees nationwide will be subject to the general PSL and additional PHEL obligations beginning January 1, 2021; employers with 15 or fewer employees nationwide will be subject to both leave obligations beginning January 1, 2022. Employers of all sizes are subject to the COVID-19 paid leave obligation for 2020.
• The CDLE has confirmed that the HELP Rules were terminated with the passage of the HFWA. The INFOs state that leave already provided under the HELP Rules can be used to offset the 2020 obligation to provide two weeks of COVID-related leave under the HFWA; however, since leave under the HELP Rules was provided at a lower rate of pay (2/3 of the regular rate of pay), the offset will be prorated to align with the HFWA’s requirement for full pay for COVID-related leave.
• Employers may satisfy their 2020 obligation to provide COVID-related PSL through an employer paid leave policy that is not COVID-specific if all of the following apply:
  • the employer adopted the PSL policy on or after April 1, 2020
  • the employer provides the same quantity of leave, at the same rate of pay, for all of the same situations required by the HFWA
  • the employer’s policy allows employees to take HFWA-required leave even if they have already used their employer-provided leave for another reason
• Employers with paid leave policies that existed prior to April 1, 2020 must provide the full amount of additional HFWA-required leave. These employers may not require employees to take their employer-provided leave before accessing leave provided under the HFWA.
• Unlike the FFCRA, the HFWA does not include any permanent exemptions based on employer size. The INFOs confirm that no employers are exempt from the law based on size, except in that during calendar year 2021 only, employers with fewer than 16 employees are not subject to any obligations to provide paid leave.
• The HFWA also differs from the FFCRA in that it does not include an exemption for health care providers or emergency responders. Guidance in the INFOs does not address this issue.
• Employers can satisfy the HFWA’s notice and posting requirements in the following ways:
  • Notice: Employers can provide employees with the latest version of INFO #6A or the CDLE poster (effective July 15 – December 31, 2020) on paper or electronically
  • Posting: Employers should display the CDLE poster in each establishment where employees work, or send electronically and display in a conspicuous location on a web-based platform for employees who do not report to a physical workplace or who are working remotely
• The INFOs clarify that the notice and posting requirements are waived any time an employer’s entire business is closed due to a public health emergency, as employees would then be considered furloughed and would have access to unemployment benefits rather than paid leave time. Closure of one worksite or branch due to a public heath emergency does not cause these requirements to be waived.
• The guidance defaults to the calendar year as the definition of “year” for the purpose of establishing the minimum amount of regular PSL employers must allow to accrue. However, it also provides that an employer can select a different annual cycle if it informs employees in writing, in advance, and if doing so does not diminish employees’ rights under the HFWA.

Healthy Families and Workplaces Act (originally sent June 2020)

The HFWA, which incorporates three different paid sick leave provisions, was enacted on June 16, 2020. The law went into effect immediately upon passage, with the exception of PHEL provisions that have two different effective dates based on employer size.

The HFWA encompasses three separate sets of provisions, which require all Colorado employers to provide their employees with

• Paid sick and safe leave (PSL)
• COVID-19 emergency paid sick leave (EPSL, for 2020 only)
• Public health emergency leave (PHEL, replaces EPSL starting in 2021)

Coverage

• All three leave programs apply to all private employers with an employee who works in Colorado. Employers with fewer than 16 employees are exempt from the HFWA for calendar year 2021 only.
• An employee is anyone performing labor or services for an employer’s benefit, including migratory laborers. Independent contractors and employees subject to the Railroad Unemployment Insurance Act are not considered employees under HFWA.
• For unionized employees, there are potential exemptions based on when a collective bargaining agreement (CBA) was in effect and what provisions it contains. The HFWA appears not to apply in the following situations:
  • A CBA in effect on the effective date of the HFWA, that provides equivalent or more generous paid sick leave
  • A CBA initially negotiated after the HFWA’s effective date that includes an express waiver of the HFWA’s requirements and provides equivalent or more generous paid sick leave
• The HFWA includes provisions regarding family members of the employee. The law defines “family member” broadly to include persons related by blood, marriage, civil union, or adoption; children for whom the employee stands in loco parentis; persons who stood in loco parentis to the employee; and any person for whom the employee is responsible for providing or arranging health- or safety-related care.

Paid Sick and Safe Leave

Colorado joins many other states and localities in passing a paid sick and safe leave (PSL) mandate. Colorado’s PSL law will take effect on January 1, 2021 for employers with 16 or more employees and January 1, 2022 for all other employers.

• Employees must accrue, at minimum, one hour of PSL for every 30 hours worked, up to a maximum of 48 hours per year.
• Exempt employees accrue PSL based on a 40-hour workweek (or their typical number of hours worked in a week if less than 40).
• Employers can choose to frontload PSL at the beginning of the year if the amount of sick time provided meets or exceeds the requirements of the PSL law. Carryover requirements will still apply.
• Up to 48 hours of accrued, unused PSL can carry over from year to year, although employers are not required to allow employees to use more than 48 hours of leave in one year.
• PSL must be paid at an employee’s regular rate of pay, not including overtime, bonuses, or holiday pay. Commission-only employees must be paid at least minimum wage; employees who are paid a combination of wages and commission must be paid the greater of minimum wage or their regular wage.
• PSL may be used for the following reasons:
  • Employee’s or family member’s mental or physical illness, injury, or health condition
  • Employee’s or family member’s medical diagnosis, care, or treatment related to illness, injury, or condition
  • Preventive medical care
  • Employee’s or family member’s need to seek medical or legal services, mental health services, or relocation due to domestic abuse, sexual assault, or harassment
  • Absence due to a public health emergency, including when the employee’s business or the school or place of care of the employee’s child is unavailable
• Employers must allow employees to use their PSL upon oral, written, or electronic request, which should include the expected duration of the absence if possible. Employers may not require employees to provide details about domestic/sexual assault, stalking, or anyone’s health information as a condition of providing PSL.
• Employees should make a reasonable effort to provide advance notice, and schedule leave to minimize disruption, when the need for leave is foreseeable. Employers may establish written policies containing reasonable procedures for providing notice for foreseeable absences, but cannot deny leave for noncompliance with those policies.
• Employers may request reasonable documentation for leaves of four or more consecutive workdays.
• Employers may not impose a wait time before employees can use PSL; access to PSL must be provided, in increments of at least one hour (unless the employer permits otherwise), as it accrues.
• There is no requirement to cash out unused leave when employment ends, unless awarded as part of a settlement for retaliatory action that prevented the employee from using leave time. If employees are separated from employment and subsequently rehired within six months, employers must reinstate any previously accrued, unused PSL.

COVID-19 Emergency PSL

Like a number of other states and localities, Colorado has designed its emergency PSL program to extend the requirements of the Families First Coronavirus Response Act (FFCRA) to employers not covered under the federal law (those with 500 or more employees). While Colorado’s provision is modeled after the FFCRA, the Colorado law does not include tax relief to offset the cost of additional paid leave.

• The EPSL provision of the HFWA takes effect upon the governor’s signature and will remain in effect through December 31, 2020.
• Colorado’s EPSL law requires employers with 500 or more employees to provide EPSL in accordance with the requirements outlined in the FFCRA. Employees must be allocated up to 80 hours of paid sick leave to be used when they cannot work or telework due to COVID-19. Leave can be used when the employee
  • is subject to an official federal, state, or local quarantine or isolation order
  • has been advised by a medical provider to self-quarantine
  • is experiencing COVID-19 symptoms and seeking diagnosis
  • is caring for a family member due to the above reasons
  • is caring for a child whose school or place of care is unavailable due to COVID-19
• COVID-19 leave is in addition to other leave provided by the employer, and is paid at the employee’s regular rate of pay according to the text of the HFWA (see note about contradictions regarding rate of pay in the explanation of INFO #6A above).

Public Health Emergency Leave (PHEL)

PHEL replaces COVID-specific leave beginning January 1, 2021. During a public health emergency, employers must provide PHEL in addition to PSL to ensure that employees can take leave to comply with government requirements to slow the spread of disease.

• The HFWA defines as public health emergency as a pandemic or disease with pandemic potential, an act of bioterrorism, or an epidemic for which a disaster emergency is declared by the governor or a federal, state, or local public health agency
• PHEL must be provided in the following amounts:
  • Employees who work 40 or more hours per week: accrual of at least 32 hours of PHEL in addition to the regular PSL requirement (for a total of 80 hours of paid leave)
  • Employees who work fewer than 40 hours per week: accrual of PHEL until the total number of paid leave hours for the year is equal to at least the number of hours the employee is scheduled to work in a 14-day period or the amount of time the employee actually works in an average 14-day period, whichever is greater
• Employees can use PHEL for the following reasons when a communicable illness causes a public health emergency:
  • For self-isolation, or to care for a family member who is self-isolating, due to symptoms or diagnosis of the communicable illness
  • To seek medical care or treatment when experiencing symptoms of the communicable illness
  • To seek preventive care concerning the communicable illness
  • When the employee has been exposed to or is exhibiting symptoms of the communicable illness, as determined by local health authorities, regardless of diagnosis
  • To care for a child or family member when their school or place of care is unavailable due to the public health emergency
  • When the employee is unable to work due to being a member of an at-risk population with respect to the communicable illness
• Employees must notify their employer of the need for PHEL as soon as practicable only when the need for PHEL is foreseeable. Employees do not need to provide documentation of the need for leave. Employers may not deny leave because notice was not given in advance.
• Employers may count accrued, unused PSL toward the PHEL requirement.
• Employees may use PHEL until four weeks after the termination or suspension of the public health emergency.
• Employees are eligible for PHEL only once during the entirety of a public health emergency, even if the emergency declaration is extended.

General Considerations

• The HFWA includes a notice requirement, which is waived until reopening if the business is temporarily closed. Employers must display the poster created by the Colorado Department of Labor and Employment (CDLE), in English and any language spoken by at least 5% of the employer’s workforce, and provide each employee (including those who telework) with individual written notice of their entitlement to leave under the HFWA, including
  • the amount of paid sick leave to which employees are entitled and the terms of its use
  • notice that employers cannot retaliate against employees for requesting or using paid sick leave, and that employees have the right to file a complaint or bring a civil action if they suffer retaliation or are denied leave granted to them under the law
• Employers must maintain records of hours worked, PSL accrued, and PSL used under the HFWA, and keep them for two years. Records pertaining to employee health must be kept confidential and separate from other employee records.
• Employees cannot waive their rights under HFWA except in the case of a CBA that meets the requirements of the law.
• Employers are not required to provide additional sick leave to employees if
  • they provide an amount of paid leave that meets both the PSL and PHEL requirement, and
  • they allow employees to use paid time according to the purposes and conditions described in the HFWA