Brownstein Client Alert, June 17, 2020
In response to the COVID-19 pandemic, Colorado has joined a growing number of states and municipalities in requiring most employers to provide paid sick leave. Although the COVID-19 pandemic was the catalyst for this new legislation, the law is not limited to the current situation, but instead provides broad paid sick leave entitlements.
The Healthy Families and Workplaces Act (“Act”), enacted on June 16, 2020, goes into effect on Jan. 1, 2021, and provides employees in Colorado with basic paid sick leave as well as additional paid sick leave during a public health emergency. The Act establishes minimum requirements and does not preempt, limit or otherwise affect more generous laws and regulations. While many employers may already have policies that provide more generous paid sick leave, the new Colorado Act imposes additional requirements that may force employers to modify their existing policies.
Covered Employers: The Act initially applies to employers with 16 or more employees, with certain limited exceptions. Starting Jan. 1, 2022, it applies to those with 15 or fewer employees as well. It is unclear whether only employees located in Colorado are counted toward the threshold, and the extent to which traveling employees may be entitled to the benefits of the law (unlike other jurisdictions, which impose a minimum hour requirement of work in the state to be a beneficiary of the law).
Employees May Earn Up to 48 Hours of Basic Paid Sick Leave Per Year: Upon hire, employees begin accruing paid sick leave at the rate of one hour for every 30 hours worked, up to 48 hours (or such higher number as the employer may allow). Employers also have the option of granting paid sick leave in one lump sum up front. Unlike many other jurisdictions that permit a “waiting period” before employees may begin using paid sick leave, the Colorado Act entitles employees to use paid sick time immediately upon accrual. Accrued sick leave carries over from year to year, up to a maximum of 48 hours, and employers can limit usage of the basic paid sick leave to 48 hours per year. Importantly, accrued paid sick leave time carries over to any successor employer (i.e., an entity that becomes an employer subject to the Act because it acquires a business that was subject to the Act or acquires all or substantially all of the assets thereof).
Use of Paid Sick Leave: Employers must, upon an employee’s written or verbal request, provide paid sick days for illness, injury or condition of, or preventive care for, the employee or, as needed, the employee’s family member (as defined in the Act); specified circumstances involving domestic violence, sexual assault or stalking, including obtaining a restraining order, obtaining counseling or medical or other services, or safety planning actions such as obtaining temporary or permanent relocation; a public health emergency that causes the employee’s place of business or the employee’s child’s school to close. Public health emergencies include pandemics and the potential for pandemic, such as the current coronavirus situation.
Employees determine how much paid sick leave they need to use, and must be permitted to use it in no greater than one-hour increments. When the need for leave is foreseeable, employees must make a good faith effort to provide advance notification and make a reasonable effort to schedule leave so as not to be unduly disruptive to operations. If the need for leave is unforeseeable, employees should provide notice as soon as practicable. Employers may implement policies regarding reasonable procedures for giving notice, but cannot deny paid sick leave based on noncompliance with the policy. Employees cannot be required to find replacements to cover their shifts as a condition to taking paid sick leave. Employers may require documentation from the employee if four or more consecutive paid sick days are taken.
More Generous Existing Policies: If the employer already has more generous PTO, vacation or other paid time off policies, the employer need not provide additional basic paid sick leave. Employers should be cautious in making that determination, however. Preliminarily, the accrual rate must be as generous as that provided by the Act (i.e., one hour for every 30 hours worked), and it must be available to the employee immediately. This can pose a trap for unwary employers, particularly with respect to temporary or seasonal workers and part-timers, who may not be eligible for paid time off under employers’ policies. In addition, the paid time off must be available for the purposes permitted by, and under the same conditions provided by, the Act. There also are carve-outs for policies applicable to public employees, federal contractors and workers subject to collective bargaining agreements.
Additional Paid Sick Leave During a Public Health Emergency: The Act requires employers to make available to employees a one-time allotment of two weeks of additional paid sick leave during a public health emergency. Notably, this one-time allotment applies even if the public health emergency is amended, extended, reinstated or prolonged. For full-time employees, this amounts to 80 hours of additional paid sick leave; for employees who regularly work less than 40 hours per week, employers must provide the greater of the number of hours the employee is scheduled to work in a 14-day period or the average time the employee actually works in a 14-day period. Unused basic paid sick leave may be counted toward this entitlement. Subject to time constraints (i.e., until four weeks after the official termination or suspension of the public health emergency), employees may take additional paid sick leave if: they are self-isolating due to a positive diagnosis, are experiencing symptoms, or are seeking medical treatment or preventive care with respect to the disease causing the public health emergency, or are caring for a family member in such circumstances; public health officials or the employer determines it is unsafe for the employee to come to work due to the public health emergency; they must care for a child whose child care facility is closed due to the public health emergency; or the employee suffers from a preexisting condition that would make him or her more susceptible to serious harm if they were infected with the disease causing the public health emergency. Importantly, “documentation is not required to take leave under this Section.”
No Payout Upon Termination; Reinstatement Upon Rehire: Unused paid sick leave need not be paid out upon termination. However, the employer must reinstate unused paid sick days if the employee is rehired within six months of termination. (For employers who provide PTO instead of separate sick and vacation leave, this requirement will be inapplicable, as accrued PTO will have been paid out upon termination, and therefore need not be reinstated.)
Notice, Posting and Recordkeeping Requirements: Employers must provide notices to employees of their rights under the Act via a written notice containing specified information, as well as a conspicuous posting. The Division of Labor Standards and Statistics (“Division”) will create a template compliant notice and a poster detailing the rights provided by the Act, with a penalty of $100 per willful violation of the posting requirement. For employees who telework, this can be done electronically or conspicuously on the web portal. Employers are required to retain records documenting hours worked and sick days accrued and used by employees for a period of two years, and to make the records available to the Division and the applicable employee for inspection. Failure to maintain appropriate records will result in a presumption that the employer violated the Act. Health, domestic violence and related information regarding the employee and family members must be maintained as confidential.
Non-Retaliation; Enforcement: The Act prohibits interfering with employees’ right to use accrued sick leave, and prohibits discrimination and retaliation against employees who use or attempt to use paid sick days, file a complaint with the Division or allege a violation of the Act, cooperate in an investigation or prosecution under the Act, or oppose any policy, practice or act prohibited by the Act. The Division has authority to enforce the Act. Aggrieved employees may file a charge with the Division, and also may bring civil actions within two years, provided they have submitted a complaint to the Division or made a demand for back pay to the employer and have allowed the employer 14 days to respond. The remedies provided under the Act are cumulative.
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This document is intended to provide you with general information regarding the Colorado Healthy Families and Workplaces Act of 2020. 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 this law in this area is changing rapidly, and articles are not automatically updated, continued accuracy cannot be guaranteed.