On July 14, 2020, Governor Polis signed into law the Healthy Families and Workplaces Act of Colorado (“HFWA”). Although the HFWA took effect immediately, some measures of the Act will not take effect until January 1, 2021 and January 1, 2022, depending on the size of the employer.
Effective July 14, 2020 through December 31, 2020, all employers in the state, regardless of size, are required to provide each of their employees paid sick leave for reasons related to the COVID-19 pandemic in the amounts and for the purposes specified in the federal “Emergency Paid Sick Leave Act” in the “Families First Coronavirus Response Act.” Information relating to the Families First Coronavirus Response Act may be found on our website: allen-vellone.com.
Effective January 1, 2021, for employers with 16 or more employees, and Effective January 1, 2022, for all employers, the HWFA requires employers to provide paid sick leave to their employees, accrued at one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours per year.
Accrual Provisions
- An employee begins accruing paid sick leave when the employee’s employment begins, may use paid sick leave as it is accrued, and may carry forward and use in subsequent calendar years up to 48 hours of paid sick leave that is not used in the year in which it is accrued. If an employer already provides paid sick leave that meets or exceeds these requirements, it need not provide these additional protections.
- An employer is not required to allow the employee to use more than 48 hours of paid sick leave in a year.
- Employers are not prevented from providing more than the legal requirements of the Act.
- Paid sick leave is accrued based on the assumption that full-time, exempt employees work 40 hours per week.
- Employees who work fewer than 40 hours a week, paid sick leave accrues based upon the number of hours that comprise the employee’s normal workweek.
- Employers are not required to pay out unused sick leave to an employee upon termination, resignation, retirement, or other separation from employment. However, an employee may recover paid sick leave as a remedy for a retaliatory employment action that prevented the employee from using paid sick leave.
- If the employee separates from employment, but is rehired within 6 months, the employer is required to reinstate any paid sick leave that the employee had accrued but not used during the employee’s previous employment, unless the employer paid the employee for the accrued sick leave at the time of separation. For those employers who provide paid time off (PTO) that includes sick and vacation leave, the employer will not need not reinstate accrued and unused sick leave as that would have been paid out in conjunction with the PTO.
Use of Paid Sick Leave
Employees may use accrued paid sick leave to be absent from work for the following purposes:
- 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.
Paid Sick Leave During Public Health Emergency
- In addition to the paid sick leave accrued by an employee, the HFWA requires an employer, regardless of size, to provide its employees an additional amount of paid sick leave during a public health emergency in an amount based on the number of hours the employee works.
- Employers may count an employee’s unused accrued paid sick leave toward the supplemental paid sick leave.
- Employees are allowed to use paid sick leave up to 4 weeks after the official termination or suspension of the public health emergency.
- Employers must also pay employees paid sick leave for absences as a result of self-isolation or care for a family member who is self-isolating, or requires medical diagnosis, care or treatment relating to the public health emergency.
No Retaliation
Employers may not retaliate against employees who use paid sick leave or otherwise exercise their rights under the Act.
Requests for Leave
- Employers are required to allow an employee to use paid sick leave upon request by the employee.
- Requests by employees may be made orally, in writing, electronically, or by any other means acceptable to the employer.
- Whenever possible, the employee shall include the expected duration of the absence.
- Employers may create written policies identifying reasonable procedures for the employee to provide notice when seeking paid sick leave.
- Employees must use paid sick leave in hourly increments unless the employer allows paid sick leave to be taken in smaller increments of time.
Notification, Confidentiality and Record-Keeping
- Employers are required to notify employees of their rights under the Act by providing employees with a written notice of their rights and displaying a poster, developed by the division of labor standards and statistics (division) in the department of labor and employment (department), detailing employees’ rights under the act.
- The HWFA treats an employee’s information about the employee’s or a family member’s health condition or domestic abuse, sexual assault, or harassment case as confidential and prohibits an employer from disclosing such information or requiring the employee to disclose such information as a condition of using paid sick leave.
- The Act requires that an employer retain paid sick leave records for each employee for a two-year period, “documenting hours worked, paid sick leave accrued, and paid sick leave used.”
- The Colorado Department of Labor and Employment created a poster for use by employees, which should be posted in a conspicuous and accessible location in the worksite. A copy of this poster is located on page 5 of this newsletter.
- The penalty for not providing the notice is a civil fine not to exceed $100 per each violation. The penalty is the same as that for not providing the poster. For example, providing neither a notice nor a poster would potentially have an employer facing $200 in fines.
Violations
An employer found in violation of the HWFA is liable to the employee for back pay and other equitable damages.
What Employers Should Do
- You should review and update your sick leave policies and employee manual to be in compliance with the Act.
- Make sure you have obtained a copy of the poster, and that poster is placed in a conspicuous location at the worksite.
- Inform employees of the new policies.