By Gary Benson, Esq. and Sean O’Brien, Esq.
From the Winter 2022 Journal of the Colorado Dental Association
When 2021 approached, we wrote an article expressing hope that the year would not be dominated by the COVID-19 virus. Now we find ourselves in 2022 and, unfortunately, COVID-19 is still a part of our everyday lives, both from a health standpoint and in the workplace. Employers now must decide whether to require a vaccine for employees and must remain vigilant and prepared for outbreaks among their teams.
In addition, the Colorado legislature passed the Healthy Families and Workplaces Act (HFWA) in 2020. The HFWA establishes minimum standards for employees to accrue and use paid sick leave. These minimum standards became effective on Jan. 1, 2021, for all employers of 16 or more employees and will apply to all Colorado employers, no matter the size, beginning Jan. 1, 2022. The HFWA also contains a separate public health emergency exception that applies to all employers in the state, no matter the size. This public health emergency exception requires that any employee who is ill or subject to quarantine due to a public health crisis (COVID-19, suspected COVID-19 or a future public health emergency) receive up to two weeks of paid leave while they quarantine.
Healthy Families and Workplaces Act
Prior to the creation of the HFWA employers were not obligated to provide sick leave for employees. However, the HFWA now establishes the minimum standards for employees to accrue paid sick leave. As of Jan. 1, 2022, all Colorado employees must earn at least one hour of paid sick leave for every 30 hours worked. An employee is not entitled to earn more than 48 hours of paid sick leave per year; however, an employer can set a higher maximum amount. For example, an employer can let its employees accrue 60 or 80 hours of paid sick leave per year. Employees can accrue this leave as they work, or employers can satisfy this requirement by providing employees with a full bank of paid sick leave at the beginning of each year.
Employees begin to accrue leave as soon as their employment begins, and they can use paid sick leave as soon as it is accrued. When taking sick leave, employees must be paid at their normal rate of pay and must be allowed to take paid sick leave in one-hour increments, unless the employer allows leave to be taken in shorter increments of time (i.e. 15-minute or 30-minute increments). Employees must be allowed to use paid sick leave for a wide variety of reasons, including:
- A mental or physical illness, injury, or health condition that prevents the employee from working;
- The need to obtain a medical diagnosis, care, or treatment for a mental or physical illness, injury, or health condition;
- The need to obtain preventive medical care;
- The need to care for a family member who has a mental or physical illness, injury, or health condition or needs to obtain a medical diagnosis, care (including preventive care), or treatment;
- The need to seek or obtain medical, mental health, legal, or other related services if the employee or the employee’s family member has experienced domestic abuse, sexual assault, or harassment; and
- The closure of the employee’s place of business or the employee’s child’s school or care facility due to a public health emergency.
The Colorado Department of Labor and Employment (CDLA) has clarified that the HFWA does not require employers to provide a bank of paid sick leave that is separate and distinct from a bank of paid leave that can be used for vacation. Employers comply with the HFWA as long as their employees accrue paid time off (PTO) at the minimum required rate and can use that paid time off for one of the above reasons.
If your practice has a policy that combines sick and vacation leave into one PTO policy, the practice is in full compliance with the HFWA, so long as the policy: (1) satisfies the minimum accrual requirement of at least 1 hour for every 30 hours worked; (2) permits employees to take paid leave for all the reasons covered under the HFWA; (3) permits employees to take paid leave under the conditions established by the HFWA; and (4) complies with the public health emergency provisions, discussed below. Your practice will need to make clear, in writing, distributed in advance of an actual or anticipated leave request, that its leave policy satisfies these conditions. If an employee uses some or all accrued PTO for vacation and then needs to take sick leave unrelated to a public health emergency, the employer is not required to provide additional paid sick leave.
During a declared public health emergency, the HFWA also requires employers to supplement their employees’ paid sick leave, if necessary, so that employees can take the equivalent of two weeks paid sick leave for reasons related to the public health emergency. This means that employees who normally work 40 hours per week must be allowed to take up to 80 hours of paid sick leave, while employees who normally work 32 hours per week would be allowed to take 64 hours of paid sick leave. If an employee’s bank of paid sick leave is capped at 48 hours, then the employer must supplement another 32 hours of paid sick leave. If an employee’s bank of paid sick leave is capped at 80 hours, and the employee has accrued that much paid leave, then the employer does not need to provide supplemental leave. This supplemental leave is available until four weeks after the public health emergency is declared over.
The CDLE has confirmed that the ongoing COVID-19 pandemic qualifies as a public health emergency and that the supplemental leave provision applies to all Colorado employers now. Many clients have asked if the public health emergency is over since Governor Polis allowed his Executive Orders declaring a Public Health Emergency to expire; however, the HFWA provides that the public health emergency exists if declared by any local, state or federal agency. As of the writing of this article the U.S. is still under a federal public health emergency, so if any of your employees contract COVID, or are quarantined due to exposure to possible COVID for themselves or their immediate family, they would be entitled to up to two weeks of paid leave. It is important to note that if an employee has already taken two weeks of paid leave, for any reason, that they would not be entitled to any additional paid leave.
If you have any questions regarding the HFWA, and your practice’s compliance with the law, please contact your employment counsel who can provide you with guidance as it relates to your situation.
Gary Benson, Esq. and Sean O’Brien, Esq. are attorneys at Dworkin, Chambers, Williams, York, Benson & Evans, P.C. in Denver, CO. Contact them at dnvrlaw.com.
