Colorado Employers Must Offer COVID-19-Related Paid Sick Leave
The Colorado Healthy Families and Workplaces Act, enacted July 14, 2020, has temporary and long-term implications for employers. The Act requires employers in the state to provide paid sick leave entitlements to employees related to the COVID-19 pandemic, a new statewide paid sick leave requirement, and a supplemental public health emergency paid sick leave requirement. While provisions for the paid sick leave for reasons related to COVID-19 took effect immediately, other provisions will become available over the next two years.
Employers may have questions about their obligations and the rights of employees under the Act. The following article provides details to help answer those questions.
What is required of employers related to the provisions for paid sick leave taken for COVID-19 pandemic related reasons?
As a temporary measure, the Act requires all employers – even those who were not subject to the federal Emergency Paid Sick Leave Act within the Families First Coronavirus Response Act (FFCRA) – to provide employees with paid sick leave for reasons related to the COVID-19 pandemic in the same amount and for the same six qualifying reasons specified in the FFCRA. This leave is in addition to leave otherwise provided by an employer. For more information, visit the Paychex COVID-19 Help Center.
Statewide Paid Sick Leave for Colorado
Which employers and employees are covered under the state paid sick leave provisions?
The Act phases in the statutorily required paid sick leave (separate from the COVID-19-related leave) in two phases based on employer size. From Jan. 1, 2021 to Dec. 31, 2021, employers with 16 or more employees must provide paid sick leave as specified in the Act. Effective Jan. 1, 2022, all employers must provide paid sick leave as specified in the Act.
How much paid sick leave are eligible employees entitled to?
Employees will earn at least one hour of paid sick leave for every 30 hours worked and employees may earn and use a maximum of 48 hours of paid sick leave each year. The employer may limit carry over of more than 48 hours of available paid leave from year to year and can also prohibit an employee from using more than 48 hours of sick leave in one year.
When do employees begin accruing leave?
Employees employed by covered employers with 16 or more employees begin accruing paid sick leave when employment begins or Jan. 1, 2021, whichever is later, and may use the paid sick leave as it is accrued. Employees employed by covered employers with fewer than 16 employees begin accruing paid sick leave when employment begins or Jan. 1, 2022, whichever is later, and may use the paid sick leave as it is accrued.
For what purposes may sick leave be used?
An employee must be allowed to use sick leave where:
- The employee has a mental or physical illness, injury, or health condition that prevents the employee from working, or needs to care for a family member with a mental or physical illness, injury, or a health condition
- The employee or a family member the employee is caring for 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 the employee is caring for needs to obtain preventive care
- The employee or a family member has been the victim of domestic abuse, sexual assault, or harassment and the use of leave is to seek medical attention, obtain services from a victim services organization, obtain mental health, seek relocation, or seek legal services
- A public health emergency exists, and a public official has ordered closure of the employee’s place of business, the school or place of care of the employee’s child.
Must an employee request use of this paid sick leave in advance?
Employers are required to allow employees to use paid sick leave whether the request is made orally, in writing, electronically, or by any other means acceptable to the employer. Employers can, however, create written policies with reasonable procedures for providing advance notice for the need to use paid sick leave when the need for leave is foreseeable, but cannot deny paid sick leave based on noncompliance with such a policy where the employee provides otherwise-appropriate notice.
When may an employer require documentation?
An employer may require employees provide reasonable documentation for the need to use paid sick leave when the employee is requesting four or more consecutive sick days.
What if an employer already offers paid sick time off?
Employers may use existing paid leave policies to satisfy the Colorado requirements so long as the terms are equal to or more generous than the Act requires, including but not limited to eligibility, accrual rates, carry over, and reasons for leave.
What notice is an employer required to provide to employees about their access to paid sick leave under the Act?
Employers must provide notice to their employees, informing them of their right to leave under the Act. The notice must be in the form of a written notice to employees and posters containing information about the Act. Employers may use a poster published by the Department of Labor and Employment to meet this requirement. Notice requirements are waived during periods in which a business is closed for a public health emergency.
Are employees entitled to payment for unused sick leave upon termination?
The Act does not require employers to pay employees for unused paid sick leave upon termination. If after termination of employment, the employer rehires an employee within six months, the employer must reinstate any paid sick leave that the employee accrued but did not use during the employee’s previous employment.
What are the consequences for failure to comply with the new provisions?
Employers who fail to provide leave under the Act may be subject to civil actions, payment of back pay, and additional penalties. Employers could be subject to civil fines of up to $100 per violation.
Supplemental Public Health Emergency Paid Sick Leave
What is required by this section of the Act?
Effective Jan. 1, 2021, the Act proactively plans for future public health emergencies. It requires an employee to provide an additional amount of paid sick leave during a public health emergency.
How much supplemental paid sick leave is required in a public health emergency?
For full-time employees, this amounts to 80 hours of total 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 works in a 14-day period as additional leave on top of the 48 hours already being provided.
When can supplemental public health emergency paid sick leave be taken?
Supplemental leave will be available for an employee from the declaration of the public health emergency until four weeks after the official termination or suspension of the public health emergency.
What reasons can supplemental paid sick leave be taken for?
This leave may be used by employees for the following reasons:
- Self-isolating due to a positive diagnosis, experiencing symptoms, seeking medical treatment or preventative care with respect to the illness causing the public health emergency
- Suffering from a preexisting condition that would make the employee more susceptible to serious harm if infected with the illness causing the public health emergency
- Where public health officials or the employer have deemed it to be unsafe for the employee to come to work due the employee’s exposure to, or displaying symptoms of, the illness causing the public health emergency
- If caring for a family member in the above circumstances, or if they must care for a child or other family member whose school or child care facility is closed due to the public health emergency.
Can an employer require an employee provide documentation for supplemental public health emergency paid sick leave?
An employer may not require an employee to provide documentation in order to take sick leave under the public health emergency provision of the Act.
On November 11, 2020, the Department of Labor and Employment adopted its Final Rule. The rule addresses the Healthy Families and Workplaces Act (HFWA) and clarifies how to transition from 2020 COVID-only leave to 2021 leave for any health need; how paid leave is accrued; how year-to-year leave carryover works; and how employers calculate leave pay rates and hours for non-hourly or irregular-schedule employees. Under the rule, up to 48 hours of accrued but unused paid sick leave may be carried over to a subsequent year.
Paychex will continue to monitor for developments, including if/when regulations are released related to the paid sick leave law. If you have additional human resource questions or needs, Paychex provides a full suite of HR products and services that can assist.