Colorado Enacts Paid Sick Leave

In July, Colorado Governor Jared Polis signed a statewide paid sick leave bill into law. The Healthy Families and Workplaces Act (Law) goes into effect on January 1, 2021, and applies to all Colorado employers. The legislation requires employers to provide COVID-19 emergency paid sick leave, paid sick leave, and future paid public health emergency leave. This article will address each of the three aspects of the new Law and give guidance to employers on how to prepare for compliance.

COVID-19 Emergency Paid Sick Leave

The law requires all Colorado employers who were not subject to the Federal Emergency Paid Sick Leave Act in the Families First Coronavirus Response Act (employers with 500 or more employees) to provide paid sick leave related to COVID-19. This provision became effective immediately and is in effect through December 31, 2020. Employers who were already subject to the federal law must continue to comply. The federal law requires employers to provide up to 80 hours of paid sick leave to employees who cannot attend work related to COVID-19. The maximum daily cap is $511 if an employee is sick and 2/3 pay up to $200 a day if taking care of someone else.

Paid Sick Leave

The law requires all employers to provide paid sick leave over a phased-in approach. Beginning January 1, 2021, employers with 16 or more employees must comply, and January 1, 2022, all employers of any size in Colorado will be required to provide paid sick leave.

The law requires all employers to give one hour of paid sick leave for every 30 hours worked and caps the sick leave amount at 48 hours (or six workdays). The law applies to hourly and salaried employees, as well as full and part-time employees. Nothing in the law prohibits an employer from offering more paid sick leave, and if an employer already provides a minimum of 48 hours paid sick leave per year, the employer need not offer more. The law requires that up to 48 hours of paid sick leave be carried forward into the new year, but does not require that an employer let an employee use more than 48 hours of paid sick leave in a year.

According to the law, an employee begins accruing paid sick leave as soon as employment starts, and there is no waiting period. Additionally, an employee should be permitted to use sick leave as it accrues and can take paid sick leave in one-hour increments. Accrual is based on a 40-hour workweek for exempt employees. For part-time employees, paid sick leave is accrued based on the average number of hours worked in a standard workweek.

Generally speaking, employers are not required to pay out unused paid sick leave when an employee is let go. Employees can recover paid sick leave if retaliated against by their employer in a way that prevented them from using their paid sick leave. If an employee is let go and then rehired by the same employer within six months, the employer must reinstate the paid sick leave to the employee as long as it was not paid out at termination.

Under the law, an employee can use paid sick leave in the following circumstances:

• “The employee has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care;
• “The employee needs to care for a family member who has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care;
• “The employee or family member has been the victim of domestic abuse, sexual assault, or harassment and needs to be absent from work for purposes related to such crime; or
• “A public official has ordered the closure of the school or place of care of the employee's child or of the employee's place of business due to a public health emergency, necessitating the employee's absence from work.”¹

Employers are not permitted to require disclosure of paid sick leave details regarding health information (of the employee or the employee’s family member), domestic violence, sexual assault, or stalking as a condition of approving paid sick leave.

Public Health Emergency Leave

The Law also provides that Colorado employers must provide public health emergency paid sick leave in addition to its regular paid sick leave. Under this Law, when a public health emergency is declared, employees who typically work 40 hours a week or more must be given at least 80 hours of paid public health emergency leave and employees who work less than 40 hours a week must be given at least as much time as the employee is scheduled to work in a two week period, or the amount of time an employee works in an average two week period, whichever is greater.

Like the Families First Coronavirus Response Act, employees can use their public health emergency paid time off to self-isolate, seek treatment, diagnose, recover, take care of sick family members, or watch their children due to schools being shut down because of the health crisis.

Preparing for Compliance

Employers should prepare for compliance in the following ways:

• Review current paid sick leave policy to determine whether revisions are needed.
• Begin developing a new or revised sick leave policy if not compliant. Consider reaching out to legal counsel for assistance.
• Monitor the Colorado Division of Labor website for relevant regulations or notices on paid sick leave.
• Provide notice to employees, in writing and by poster, of their paid sick leave rights under the law.

Conclusion

Employers should begin preparing for compliance with the paid sick leave law as it will soon be going into effect across the state. If your organization has questions regarding legal compliance, be sure to contact experienced legal counsel to address your concerns.

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¹ SB20-205, Bill Summary.

Featured Image by Rebecca Sidebotham.