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August 5, 2020

Colorado Enacts 3-Part Paid Sick Leave Benefit

Colorado enacted a three-part paid sick leave program known as the Healthy Families and Workplaces Act on July 14, 2020.  The law includes:

  1. A temporary COVID-related paid leave;
  2. A state-wide paid sick leave law; and
  3. A supplemental paid sick leave for a public health emergency. 

Temporary COVID-related Paid Sick Leave

The temporary paid sick leave law took effect on July 15, 2020, and is scheduled to sunset on December 31, 2020.  The law applies to all Colorado employers, without regard to size.

Up to two weeks (80 hours) of paid sick leave must be provided to employees who:

  1. Have COVID-19 symptoms and are seeking a medical diagnosis;
  2. Are ordered by a federal, state, or local government agency, or advised by a health provider to quarantine or isolate due to a COVID-risk; or
  3. Are taking care of another individual who has been ordered to quarantine or isolate, or caring for a child whose school, place of care, or child care is closed or unavailable.

Leave is paid at the employee’s regular pay rate, with the exception of caregiver leave (category 3 above) which is paid at two-thirds the regular rate.   A federal tax credit on amounts paid for leave is only available to employers subject to the Families First Coronavirus Response Act (FFCRA) leave provisions.  Leave already taken in 2020 for any of these categories is counted toward the two-week limit, unless such leave was provided at less than full pay.

The law imposes notice obligations for both employers and employees: 

  • Employees are obligated to provide reasonable notice as soon as practicable after the first workday when leave is taken. An advance notification is required in the foreseeable event of COVID-closure of child care.
  • Employer notice obligations include a language-appropriate written notice of the right to take paid leave, as well as the requirement to display a workplace posting in each of its workplace locations. The Colorado Division of Labor Standards provides a poster that can be used for this purpose.

State-wide Paid Sick Leave Law

The second component of the Healthy Families and Workplaces Act provides for a state-wide paid sick leave benefit.  Following are highlights of this law.

Applicability and effective dates

  • All private sector employers in Colorado, as well as state and local governments and school districts, are required to provide paid sick leave to their employees.  The date upon which employers are required to provide paid sick leave is based on employer size as follows:

Employer Size

Applicability Date

16 or more employees

January 1, 2021

15 or fewer employees

January 1, 2022

 
  • An eligible employee is one who performs labor or services for the benefit of the employer.  Individuals subject to the federal Railroad Unemployment Insurance Act are not eligible.

Amount, accrual and carryover of leave

Employees accrue one hour of sick leave for every 30 hours worked, up to 48 hours per year.  Alternatively, an employer may frontload the full amount of paid sick leave at the beginning of the year.

An employee begins to accrue paid sick leave on date of hire, or, the applicable effective date of the law, if later; and, may use paid sick leave as it is accrued.  Up to 48 hours of unused paid sick leave can be carried over to the following year; however, an employer can limit usage to 48 hours per year.    For this purpose, a year means a regular and consecutive 12-month period, as determined by the employer.

An employer is not required to pay an employee for unused sick leave upon an employee's termination, resignation, retirement, or other separation from employment. If an employee separates from employment and is rehired by the same employer within six months after the separation, any paid sick leave that the employee had accrued, but not used, is reinstated.

Use of leave.  An employee can use accrued sick leave for any of the following reasons:

  • To care for one’s own medical needs, or to attend to the needs of his/her family member’s  illness, injury, or health condition, including preventive medical care;
  • To obtain services or care as a result of domestic violence, sexual assault, or harassment; or
  • Due to closure of the employee's place of business, or to care for an employee’s child due to the closure of the child’s  school or place of care for public health or safety reasons.

For this purpose, a family member includes:

  • The employee’s immediate family member who is related by blood, marriage, civil union, or adoption;
  • A child to whom the employee stands in loco parentis, or a person who stood in loco parentis to the employee when he/she was a minor; or
  • A person for whom the employee is responsible for providing or arranging health or safety-related care.

Notice RequirementsThe law imposes both employee and employer notice obligations.

  • Employee notice obligations.  An employee can request sick leave orally, in writing, electronically, or by any other means acceptable to the employer.  An employer may provide the employee with a written policy that includes reasonable procedures for providing notice when requesting leave.  An employer cannot deny paid sick leave to employees if the employer has not provided such policy to them. 

When the need for leave is foreseeable, the employee is obligated to provide advance notice to the employer, including the expected duration of the absence, and make a reasonable effort to schedule the use of paid sick leave in a manner that does not unduly disrupt the employer’s operations. 

For paid sick leave of four or more consecutive work days, an employee may be required to provide reasonable documentation to the employer to substantiate the need for leave.

  • Employer notice/posting obligations.  An employer is required to provide a written notice to its employees of the right to accrue paid sick leave.  In addition, the employer must display a workplace poster in a conspicuous location at its place of business.  The written notice and poster must be provided in English, or in the primary language spoken by at least five percent of the employer’s workforce.  The Colorado Division of Labor Standards is charged with developing a model notice and poster that could be used for this purpose.

If the employer’s business is closed due to a public health emergency, the notice and posting requirement is waived for the period the business is closed.  If an employer does not maintain a physical workplace, or has employees who work remotely, notice can be provided electronically or made available on the employer’s web-based platform. 

Coordination with Employer’s existing PTO policy.  An employer who has an existing paid time off policy that meets or exceeds the requirements of the law with regard to accrual, carryover and use, is not required to provide any additional sick leave.

With regard to coordination with certain PTO policies:

  • If sick leave benefits are the subject of good faith bargaining, and as long as the collective bargaining agreement provides benefits at least as generous as those provided under the law, then the law will be deemed satisfied.
  • If an employer is a signatory to a multiemployer plan, its contribution to a multiemployer sick leave fund, based on an employee’s hours worked, counts toward satisfaction of the requirements of the law. 
  • An employer that provides paid sick leave to its employees pursuant to Executive Order 13706, Establishing Paid Sick Leave for Federal Contractors, is deemed to satisfy the requirements of the law.

Coordination with other laws.  To the extent necessary, the state-wide leave law must be coordinated with any other federal, state or local leave laws. 

Record retention.  Employers are required to retain all records documenting hours worked, paid sick leave accrued, and paid sick leave used, for each employee for a period of two years.

Supplemental paid sick leave during Public Health Emergency

The third component of the Healthy Families and Workplaces Act provides up to 80 hours of supplemental paid sick leave in the event of a public health emergency. This supplemental paid sick leave provision applies to all Colorado employers without regard to size, and takes effect on January 1, 2021. 

Reasons for leave.  Upon the date a public health emergency is declared, employers are required to provide supplement accrued paid sick leave to their employees that can be used for any of the following reasons:

  • To self-isolate in the event the employee or his/her family member is diagnosed with a communicable illness; is experiencing symptoms of such illness; or seeks medical diagnosis, care, or treatment;
  • To care for a child or other family member if child care provider is unavailable due to the public health emergency, or the child's or family member's school or place of care has been closed; or,
  • The employee is unable to work due to his/her underlying health condition that may increase the risk of exposure to a communicable illness which is the cause of the public health emergency.

Amount and duration of supplemental paid leave.

For employees who normally work 40 or more hours in a week, the employer is required to supplement a minimum of 80 hours of paid leave.  For those employees who normally work fewer than 40 hours in a week, the amount of paid leave available is calculated as the greater of 1) the amount of time the employee is scheduled to work in a 14-day period, or 2) the amount of time the employee actually works on average in a 14-day period.  Any unused accrued sick leave can be used to offset this supplemental paid leave obligation.  The employee is entitled to use accrued leave (as described herein) up to 4 weeks following the end of the emergency.

Employees are only eligible for supplemental paid sick leave once during the entire public health emergency period, even if such emergency period is amended, extended, restated, or prolonged.

Employee notice obligations.  When the need for leave is foreseeable, and the employer's place of business has not been closed, the employee must notify the employer as soon as practicable. 

The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.

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