Colorado Extends FFCRA Requirements to All Employers

Colorado has overhauled its paid sick leave laws, requiring that all employers in the state comply with the paid sick leave requirements of the Families First Coronavirus Response Act until Dec. 31 and adding new paid sick leave requirements for employers that begins when the FFCFRA expires.

Colorado Gov. Jared Polis signed the “Healthy Families and Workplaces Act” (HFWA) into law on July 14, 2020.

The HFWA replaces the “Colorado Health Emergency Leave with Pay (Colorado HELP).” Colorado HELP was a temporary mandate that required some Colorado employers provide limited paid sick leave to employees:

• With flu-like symptoms while being tested for the coronavirus, or
• Who were under instructions from a healthcare provider to quarantine because of a risk of having the highly contagious ailment

Covered employers had to provide up to 4 days of paid sick leave. That requirement ended on July 14.

The first set of leave requirements — that all employers must comply with the FFCRA — went into effect on July 15. Employer means both private and public employers, excluding only the federal government, according to the bill.

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Colorado leave under FFCRA

The FFCRA requires private employers with fewer than 500 employees to provide up to 80 hours of fully paid sick leave and partially paid family leave for up to 10 weeks to employees who are unable to work or telework where the employee:

1. Is subject to a federal, state, or local quarantine or isolation order related to COVID–19
2. Has been advised by a healthcare provider to self-quarantine due to concerns related to COVID–19
3. Experiences symptoms of COVID–19 and is seeking a medical diagnosis
4. Cares for an individual who is subject to an order as described in, or who has been advised as described in 2
5. Cares for his or her son or daughter whose school or place of care has been closed or whose childcare provider is unavailable due to COVID–19-related reasons, or
6. Experiences any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor

Passage of the state law means that Colorado’s larger employers must comply with the federal requirement until Dec. 31, 2020, which is when the federal law will expire.

Employer paid sick leave requirement in 2021 and 2022

Under the HFWA, starting Jan. 1, 2021, public and private employers with 16 or more employees — excluding the federal government — will need to begin providing paid sick leave to their employees.

The new year will ring in with a different set of paid leave compliance obligations for many of Colorado’s employers. Under the HFWA, starting Jan. 1, 2021, public and private employers with 16 or more employees — excluding the federal government — will need to begin providing paid sick leave to their employees. The following year, on Jan. 1, 2022, all employers with the exception of the federal government will need to provide paid sick leave.

The HFWA requires that employers provide 1 hour of paid sick leave for every 30 hours worked by an employee, capped at 48 hours of paid sick leave per year.

Employees can:

• Use leave in hourly amounts
• Accrue paid sick time with the first day of employment
• Carry over up to 48 hours of sick leave into the following year
• Receive paid time off in a lump sum or accrued by hours worked

Employers are free to provide more generous leave than required under the state mandate. If employers already provide paid sick leave that meets or exceeds the requirements, they do not need to take additional action.

Reason for leave

The employee can take leave for the following reasons for themself:

• A mental or physical illness, injury, or health condition that prevents them from working
• The need to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition
• The need to obtain preventive medical care

Caring for family member

The employee can also take leave if they need to care for a family member who:

• 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 of a mental or physical illness, injury, or health condition
• Needs to obtain preventive medical care

The employee can also take leave if they or their family member has been the victim of domestic abuse, sexual assault, or harassment, and they need to use leave to:

• Seek medical attention for the employee or the employee’s family member to recover from a mental or physical illness, injury, or health condition caused by the domestic abuse, sexual assault, or harassment
• Obtain services from a victim services organization
• Obtain mental health or other counseling
• Seek relocation due to the domestic abuse, sexual assault, or harassment
• Seek legal services, including preparation for or participation in a civil or criminal proceeding relating to or resulting from the domestic abuse, sexual assault, or harassment

Business and school closures

Employees can take leave if, due to a public health emergency, a public official has ordered the closure of:

• The employee’s place of business
• The school or place of care of the employee’s child and the employee needs to be absent from work to care for the employee’s child

In addition to the paid sick leave above, if a public health emergency has been declared, covered employers must supplement full-time and part-time employees with the following accrued sick leave:

• For employees who normally work 40 hours, hours must be added to leave to equal 80 hours of sick leave
• For employees who work fewer than 40 hours, hours must be added in the amount of time the employee is scheduled to work in a 14-day period or the amount of time the employee actually works on average in a 14-day period for employees, whichever is greater

Employees may use supplemental paid sick time if they need to self-isolate, seek medical attention, or care for a family member because of a diagnosis, symptoms, or exposure stemming from the cause of the public health emergency.

Employees may use supplemental paid sick time if they need to self-isolate, seek medical attention, or care for a family member because of a diagnosis, symptoms, or exposure stemming from the cause of the public health emergency.

Employers do not need to pay out unused sick leave on termination.

The HWFA does not apply to employees covered by a Collective Bargaining Agreement if the CBA provides for equivalent or more generous paid sick leave.

The law prohibits retaliation. An employer cannot take retaliatory personnel action or discriminate against an employee or former employee because the person has their rights under the state statute.

Other employer requirements

It’s a requirement that employers notify employees in writing that they can take paid sick leave. Employers can communicate this via a written notice that they can add to the employee handbook. They can also place a poster — which is available from the state’s Labor Department — in a conspicuous place.

Employers must retain records for 2 years of the hours worked, paid sick leave accrued, and paid sick leave used for each employee.