Colorado’s Supplemental Public Health Emergency Paid Sick Leave for COVID-19 Ends

The end of the Colorado’s COVID-19 Disaster Recovery Order in April and the subsequent end of the National Public Health Emergency resulted in the end of Colorado employers’ requirement to provide COVID-19 public health emergency (PHE) paid sick leave as of June 8, 2023. Employers had been required under a provision of the Colorado Healthy Families and Workplace Act (HFWA) to offer employees up to 80 hours of supplemental PHE paid sick leave during the public health emergency.

The provision on public health emergency supplemental paid sick leave remains in effect for any future PHEs, as does accrued paid sick leave (unrelated to COVID-19 or PHEs) of HFWA. The latter provision was phased in over a two-year period, and at this point all employers in Colorado are required to provide paid sick leave.

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.

How Much Paid Sick Leave Can Eligible Employees Earn?

Eligible 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 carryover 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 began accruing paid sick leave when employment began or Jan. 1, 2021, whichever was later, and can use the paid sick leave as it is accrued. Employees employed by covered employers with fewer than 16 employees began accruing paid sick leave when employment began or Jan. 1, 2022, whichever was 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.
  • Family member is defined under the HFWA as an individual related by blood, marriage, civil union, or adoption.
• 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. 

Do Employees Have to Request Use of 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 to 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?

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, carryover, and reasons for leave. 

What Notice is an Employer Required to Provide to Employees Under HFWA?

Employers must provide notice to their employees, informing them of their right to leave under the Act. The notice requirements include providing a written notice to employees and displaying 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. 

How is Pay Handled for Used Sick Leave?   

Eligible employees who take sick leave under HFWA must be paid the same hourly rate or salary that they normally earn during hours worked, as well as get paid on the same payday schedule. However, overtime, discretionary bonuses, or holiday pay does not need to be included in sick leave pay. If employers have tipped employees who they pay a rate below full minimum wage, they must pay employees full minimum wage for their leave.   

Are Employees Entitled to Payment for Unused Sick Leave?

The Act does not require employers to pay employees for unused paid sick leave, but employers can voluntarily pay out for unused sick leave if they wish. However, if after separation from the business, 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 (as long as it has not been converted to monetary compensation to the employee). 

What are the Consequences for Non-Compliance?

Employers who fail to provide leave under the Act may be subject to civil actions, payment of back pay, and additional penalties. Additionally, employers could be subject to $100 fines per violation for not meeting notice and posting requirements. 

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 employer 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 childcare 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. 

How Paychex Can Help

Staying ahead of the curve on legislation that impacts laws such as the Healthy Families and Workplace Act, as well as simply tracking employee leave, can take your focus away from running your business. Paychex provides a full suite of HR products and services that can help.