As we all look forward to the New Year, Colorado employers should be aware of new legislation that will require employers to allow employees to accrue and use paid sick leave: the Healthy Families and Workplace Act (“HFWA”). HWFA follows the Emergency Paid Sick Leave Act ("EPSL") part of the Families First Coronavirus Response Act (“FFCRA”), which took effect April 2, 2020, in response to the COVID-19 pandemic. The goals of HWFA are twofold. First, it looks to continue the benefits provided in the EPSL for the duration of the COVID-19 pandemic. As such, on December 31, 2020, all employers must provide an amount of paid sick leave that mirrors the EPSL to each employee who is not covered by the EPSL. Second, HWFA sets the floor for paid sick leave benefits going forward. Starting January 1, 2021, employers with more than 15 employees are required to comply with the paid sick leave requirements below. Employers with 15 or fewer employees have an additional year, or until January 1, 2022, to comply.
How Paid Sick Leave is Accrued
Each employee must earn at least one hour of paid sick leave for every 30 hours worked. However, an employee cannot earn or use more than 48 hours of paid sick leave each year. Exempt employees who normally work less than 40 hours a week, will accrue leave at a lessor proportional rate, based on the number of hours that make up their normal work week. An employee must start accruing paid sick leave when employment begins and can use as this leave as it is accrued. Finally, an employee can carry up to 48 hours of accrued paid sick leave to the next year, but the employer can restrict the employee to only using 48 hours in one year.
An employer does not have to pay out accrued paid sick leave if an employee leaves employment, unless it is determined that retaliatory action prevented the employee from using the paid sick leave. Moreover, if an employee separates from employment, but is rehired within six months, the employer must reinstate any paid sick leave that the employee previously accrued, but did not use or otherwise receive compensation for. Similarly, if employees change divisions or locations within the same employer, they will retain their accrued paid sick leave.
When and How Paid Sick Leave May be Used
An employer must permit employees to use their accrued paid sick leave in the following cases:
- When an employee: has a mental or physical illness, injury, or health condition that prevents the employee from working; needs to obtain a medical diagnosis, care, or treatment; or needs to obtain preventative medical care.
- When an employee needs to care for a family member who: has a mental or physical illness, injury or health condition; needs to obtain a medical diagnosis, care, or treatment; needs to obtain preventative medical care.
- When either an employee or employee’s family member has been a victim of domestic abuse, sexual assault, or harassment and needs to: seek medical attention to recover from mental or physical illness, injury or health condition caused by the abuse, assault or harassment; obtain services from victim services; obtain mental health counselling; seek relocation due the abuse; or seek legal services.
- There is a public health emergency where a public official has closed the employee’s place of business or the employee’s child’s school or other place of care.
To use paid sick leave, the employee must:
- Request to use time. The employee can make this request orally, in writing, electronically, or other acceptable means approved by the employer. In the request, the employee should include the expected duration of the leave when possible.
- Use leave in hourly increments. The employer may permit leave to be used in increments smaller than one hour.
- Make a good faith effort to provide advanced notice. The employee should try to schedule leave in a way that does not unduly disrupt operations.
An employer may adopt a written policy with reasonable procedures for an employee to provide notice of the need to use leave, but the employer cannot deny paid sick leave for noncompliance with this policy. An employer can further require reasonable documentation for a request of four or more days of leave. However, an employer cannot require the employee requesting paid sick leave to find a replacement. Notwithstanding the foregoing, an employer can discipline an employee for taking paid sick leave outside the uses outlined above.
Additional Paid Sick Leave During a Public Health Emergency
When a public health emergency is declared, an employer must provide supplemental paid sick leave, beginning the day a public health emergency is declared where:
- An employee needs to self-isolate or receive care because of either a diagnosis or display of symptoms of the disease causing the emergency; or to seek preventive care or obtain medical diagnosis related to the disease causing the emergency; or
- An employee needs to care for a family member who is self-isolating because of a diagnosis or symptoms; needs medical diagnose, care and treatment due to symptoms; or is seeking preventative care related to the disease causing the emergency.
If an employee meets the above criteria, an employer must provide:
- An employee who works 40 hours a week or more, at least 80 hours of paid sick leave.
- An employee who works less than 40 hours a week, the greater of either the amount of time the employee is scheduled to work during 14 days OR the amount of time the employee actually works an average in 14 days.
An employer can count accrued paid sick leave towards this supplemental emergency leave, but the employer cannot require documentation for an employee to use this leave.
When requesting to use supplemental leave, an employee must provide notice as soon as practicable when the need is foreseeable and the employer is not closed. However, an employee can request to use this supplemental leave up to four weeks after the end of the public health emergency. Finally, an employee is only eligible for the supplemental paid sick leave once during the public health emergency, even if the emergency is extended.
What if there is a Paid Leave Policy Already in Place?
In this case, the employer does not have to provide additional paid sick leave if the employer makes available an amount of paid sick leave that satisfies the accrual and usage requirements outlined above.
Other Employee Rights
An employee has the right to file a complaint for non-compliance with these rules and the employer must not retaliate or discriminate against an employee because they have or attempt to exercise their rights above. An employer cannot count used paid sick leave time as an absence for purposes of discipline.
Notice and Posting Requirements
Written notice must be given to all employees and the employer must also display a poster in a conspicuous and accessible location in each establishment where the employees work. The notice and postings should be in English and any language that is the first language spoken by at least five percent of the workforce. The notices must contain:
- That employers cannot retaliate against an employee for requesting or using sick leave; and
- An advisement that an employee has the right to file a complaint or bring civil action if the paid sick leave is denied by the employer or if the employer retaliates against the employee for exercising the employee’s rights.
The notice and posting requirements are waived if the employer is closed due to a public health emergency during the duration of the closure. If there is no physical workspace, such as where employees are working remotely, the employer must provide notice via electronic communication or a conspicuous posting on a web-based platform. Each willful violation of the notice requirement or telework requirement, can result in civil fine of at most $100 for each violation. Willful violations of the posting requirement can result in a civil fine of at most $100.
The employer must keep a record for two years of the hours worked, paid sick leave accrued and used for each employee. The Division can give notice to inspect the records to ensure compliance. If the employer does not maintain these records or does not permit the Division to inspect the records, the Division will find that the employer has violated the record keeping requirement unless the employer can show compliance by a preponderance of the evidence.
An employer cannot require disclosure of any details related to domestic violence, sexual assault or stalking or details of the employee or employee’s family member’s health information. Any confidential health information must be maintained in a separate file and treated as confidential.
Violations and Lawsuit
The violation of rights as to each employee is a separate violation. If a violation causes an employee to either lose employment or pay, a determination can include reinstatement of employment; or back pay until reinstatement or a reasonable period of time if reinstatement is determined to not be feasible – or both.
To bring a civil suit against an employer, an employee must either submit a complaint to the Division or make written demand for compensation to the employer. The employer must respond to such a demand within 14 days. An employee must file a civil lawsuit against the employer within two years from an alleged failure to provide sick leave or retaliation related to the same. Remedies can include back pay and other reasonable relief.