by Zane Glover
Colorado Healthy Families and Workplaces Act (HFWA) requirement to supplement employees' regular paid sick leave in certain circumstances related to a public health emergency will remain in effect until August 13, 2022, at the earliest.
Paid Sick Leave under the Colorado Healthy Families and Workplaces Act (HFWA)
The Colorado Healthy Families and Workplaces Act (HFWA) requires Colorado employers to provide two types of paid sick leave to their employees: public health emergency (PHE) leave and accrued leave. The following points apply to both PHE and accrued leave.
- Leave must be paid for time on leave, and at the same pay rate the employee earns during time worked.
- Leave can’t be counted against employees as absences that may lead to firing or other negative action.
Public Health Emergency (PHE) Leave (Still in Effect)
Employers must provide employees with up to two weeks of paid leave (80 hours if full-time, less if part-time) for COVID-related needs. The current 80-hour requirement took effect on January 1, 2021, and remains in effect.
Employees may still have PHE hours available to use if they didn’t use them in 2021, however employees don’t get a new 80 hours each time they have a COVID-related need, and don’t get a new 80 hours of PHE leave in 2022, except for newly hired full-time employees. Employees may use PHE leave until four weeks after a PHE ends.
PHE leave is usable for a range of COVID-related needs, not just for confirmed cases. COVID-related needs include:
- Illness with COVID symptoms
- Quarantining or isolating due to COVID exposure
- COVID testing
- Vaccination and side effects
- Inability to work due to health conditions that may increase susceptibility or risk of COVID
- COVID-related needs of family (illness, school closure, etc.).
Employers cannot require documentation from employees to show that leave is for COVID-related needs.
The emergency leave requirement remains ongoing, as long as a federal or a state “emergency” remains. As of the New Year (2022), both federal and state emergency declarations remain in effect.
Employers are required to provide one hour of paid leave per 30 hours worked, up to 48 hours per year. This requirement took effect January 1, 2021, and is permanently in effect, not just during the COVID emergency.
Accrued leave is usable for a wide range of health and safety needs, not just COVID-related: Needs include:
- Any mental or physical illness, injury, or health condition that prevents work;
- Diagnosis, care, or treatment of such conditions;
- Preventive care (including vaccination);
- Needs due to suffering domestic violence, sexual abuse, or criminal harassment; or caring for family with such conditions or needs.
Starting January 1, 2022, small and large employers alike have the same accrued leave responsibilities. In 2021, employers with 15 or fewer employees had to provide emergency leave, but were exempt from accrued leave until the end of 2021.
Employers can require documentation for accrued paid sick leave (not for COVID-related public health emergency (PHE) leave), but only for absences of four or more consecutive days — and employees can provide the documentation after the leave ends.
Paid Time Off (PTO) Policies and Cost Benefit Analysis (CBAs)
Paid leave in a PTO policy, or a Collective Bargaining Agreement, can satisfy HFWA, if it covers all the same conditions or needs, at the same pay rate, and with no tougher requirements (documentation, notice, etc.) than HFWA (see Colorado Wage Protection Rules, specifically Rule 3.5.4).
Sourced from Colorado Department of Labor & Eployment (CDLE) https://cdle.colorado.gov/hfwa
Question & Answer:
What is Documentation? Can an Employer Require a Doctor's Note?
The CDLE has provided a detailed definition of “reasonable documentation” in their Wage Protection Rules, under Rule 3.5.6. Please refer to the Rule in the WPR as it very specific.
According to Rule 3.5.6(B), if the employee received any services (including remote services) from a health or social services provider for the HFWA-qualifying condition or need, a document from that provider, indicating a HFWA-qualifying purpose for the leave, will suffice. However if the employee did not receive services from a provider for a HFWA-qualifying leave, or who cannot obtain documentation or who cannot obtain a document from their provider in reasonable time or without added expense, can provide their own writing indicating that they took leave for a HFWA-qualifying purpose.
How Can We Help
We can track both HFWA and PHEL for you and the fee for this is small.
What Should Employers Do?
Employers should make sure they have updated their paid-leave and COMPS posters and are providing COMPS Order #38, reach out to us for this or download it from the web for free.
Update your employee handbook. We provide employee handbooks at a very reasonable cost.
Payroll Tax Credits Are Not Available
The credits allowed under FFCRA and ARPA ended Sept. 30, 2021.
Amount of Leave
For full-time employees, this amounts to up to 80 total hours of leave. For employees who regularly work less than 40 hours per week, employers must provide the greater of the number of hours the employee is scheduled to work in a 14-day period or the average time the employee works in a 14-day period
If you have any other questions, please let me get in touch with me and I'd be happy to help!