Colorado Enacts Expanded COVID-19 Paid Leave and Heightened Whistleblowing and PPE Protections, Effective Immediately

Colorado Enacts Expanded COVID-19 Paid Leave and Heightened Whistleblowing and PPE Protections, Effective Immediately

Jul 15, 2020

Client Alert

Brownstein Client Alert, July 15, 2020

Yesterday, Colorado Gov. Jared Polis signed two bills imposing additional requirements on Colorado’s employers that are effective immediately. The Healthy Families and Workplaces Act (“HFWA”), designed to close gaps in the federal Families First Coronavirus Response Act (“FFCRA”), confers paid sick leave rights on most Colorado employees, regardless of the size of the employer. The Public Health Emergency Whistleblower Law (“PHEW”) confers additional rights on Colorado workers, including contractors, to express concerns, engage in opposition or participate in expressing workplace health and safety violations, as well as to use personal protective equipment (PPE) of their choice. Employers must act immediately to ensure compliance with these new laws.

Paid Leave Under the HFWA

Last night, the Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (the “Division”) published its guidance interpreting the HFWA, an Interpretive Notice & Formal Opinion (INFO) #6A (“Guidance”), indicating that employers must start providing paid leave immediately, effective July 15, 2020. The intent of the HFWA is to expand coverage of the paid leave provisions of the FFCRA and the Colorado HELP Rule to nearly all Colorado employers and employees. (The FFCRA applies to employers with 500 or fewer employees, and HELP applied only to certain enumerated industries and worker types in Colorado.) However, no tax credit is available to employers under the HFWA.

Specifically, nearly all Colorado employers—regardless of size, industry or workforce composition—must provide paid leave to an employee for any of the following COVID-19-related reasons:

  • having COVID-19 symptoms and seeking a medical diagnosis; or
  • 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; or
  • taking care of someone else due to COVID-19 precautions—either someone ordered to quarantine or isolate, or a child whose school, place of care or child care is closed or unavailable.

The Guidance clarifies that the more limited paid sick leave required by the temporary Colorado HELP Rule was terminated effective July 14, 2020. Under the HFWA, and until Dec. 31, 2020, if a full-time employee qualifies for leave based on one of the above reasons, the employer must provide up to two weeks (80 hours) of paid leave at the employee’s regular pay rate and hours. However, if an employee qualifies for paid leave to care for someone else (number 3 above), the employer may limit the pay to two-thirds of the employee’s regular pay and hours. Pay must not be lower than the applicable minimum wage, but need not include overtime, bonuses or holiday pay. Part-time employees are entitled to a pro-rated amount of pay based on the number of hours normally worked in a two-week period. If a part-time employee’s hours vary, the employer must use the employee’s average hours worked over the six months before the leave, or, if the employee has not been employed for six months, the number of hours the employee agreed to work when hired.

Employers who have equally or more generous leave policies, such as vacation or paid time off (PTO) that can be used for any purpose, need not provide additional HFWA leave so long as the existing leave policy provides as much time off as the HFWA requires and the time may be used for designated uses of the HFWA. Moreover, paid leave need not be provided if an entire business is completely closed, temporarily or permanently, or if employees are furloughed or laid off. There are certain additional exceptions to the HFWA’s mandates, such as employers who provide equivalent or greater paid leave under collective bargaining agreements, the federal government and federal railroad workers.

In addition, if an employee already received paid leave in 2020 for any of the three COVID-19-related categories covered by the HFWA, that leave may be counted toward the employee’s leave entitlement, either in whole or in part, depending on how much compensation the employee received. If, however, leave was taken for a non-COVID-19 reason, such as vacation or non-COVID-19-related sick leave, then that leave does not count toward the HFWA entitlement.

The HFWA permits the same documentation of the need for leave as the FFCRA, and an employee may be required to provide reasonable notice as soon as practicable. Documentation must be maintained confidentially and separately from employee personnel files. However, as was the case under HELP, an employer may not require an employee to provide notice in advance of taking leave except for foreseeable child care leave due to facility closures. Notice may be verbal, and there are restrictions on the information an employer may obtain.

Additionally, an employer may not interfere with an employee’s rights under the HFWA, or retaliate against an employee exercising rights (or informing or supporting others in their exercise of rights) under the HFWA. Paid sick leave under the HFWA constitutes “wages,” granting employees access to the complaint and recovery procedures for nonpayment of wages available under Colorado law.

The provisions under INFO #6A are expected to be effective until Dec. 31, 2020, at which time the new guidance explained in INFO #6B, is to become effective. Starting Jan. 1, 2021, the HFWA mandates expansive employer-sponsored paid sick leave benefits for Colorado employees (detailed in our prior Client Alert), which are not limited to COVID-19 reasons and usage of which may be capped at 48 hours per year.

PHEW Whistleblower and PPE Protections

The PHEW whistleblower protections, which are limited to activities that directly relate to a public health emergency or a health-related disaster emergency as declared by the governor, are also effective immediately. These protections are somewhat similar to employee protections under the federal Occupational Safety and Health (“OSH”) Act and the NLRA. Importantly, though, PHEW applies not just to employers and their employees, but to any principal and any worker, meaning, for example, independent contractors are covered.

Specifically, PHEW provides covered workers the right to be free from retaliation or interference for:

(1) raising reasonable concerns to any person, whether a formal complaint or informally, about workplace violations of government health or safety rules, or about a significant workplace threat to health or safety;

(2) opposing a violation of the type identified above; or

(3) testifying, assisting, or participating in a proceeding about a violation of the type identified above.

PHEW also addresses a worker’s use of personal protective equipment (“PPE”), providing that a principal must allow a worker to voluntarily wear the worker’s own PPE so long as 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.” More details, including information regarding nondisclosure agreements and the Division’s limited enforcement authority, can be found at INFO #5.

HFWA and PFEW Posting Requirements and Anticipated Rulemakings

Pursuant to the Division’s Guidance, employers have no grace period and must immediately comply with the HFWA’s paid leave requirements and PHEW, as well as notice and posting requirements, including:

            (1) providing employees with INFO #6A paid leave information, and

            (2) displaying an informational poster addressing the HFWA and PHEW “in a conspicuous and accessible” place in “each establishment” where employees work, in multiple languages if applicable (this poster is also available in Spanish and must be replaced by Jan. 1, 2021, when a new poster will be promulgated by the Division).

The Division announced that it would undertake formal rulemaking (the INFOs, while clarifying the Division’s interpretation and position are not binding rules), anticipating that such rules will become effective by Jan. 1, 2021. However, in the meantime, Colorado employers are advised to immediately review and update as necessary their leave and whistleblower policies to ensure compliance with the HFWA and PHEW.

Click here to read more Brownstein alerts on the legal issues the coronavirus threat raises for businesses.

This document is intended to provide you with general information regarding new employment laws in Colorado. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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