COVID-19 Response: Phase II of Colorado’s Healthy Families and Workplaces Act Set to Begin on January 1, 2021
Denver, Colo. (December 8, 2020) - In light of the ongoing COVID-19 pandemic, on July 14, 2020, Colorado Governor Jared Polis signed into law SB20-205, the “Healthy Families and Workplaces Act,” which provides new sick leave benefits for workers in Colorado. The Act, which is broken into three phases (each of which expands the reach of the Act), took effect immediately. Key dates on which certain coverages and responsibilities for employers will change are January 1, 2021, and January 1, 2022.
Phase I: July 14, 2020 – December 31, 2020
The Act provides that all Colorado employers, regardless of size, must provide employees with paid sick leave in the amount and for the purposes provided in the federal “Emergency Paid Sick Leave Act” in the “Families First Coronavirus Response Act.” For the purposes of the Act, the definition of an “employer” is expanded to include state and local government agencies or entities and school districts.
Phase II: January 1, 2021 – December 31, 2021
Once Phase II begins on January 1, 2021, all employers in Colorado with 16 or more employees shall provide each employee paid sick leave, accrued at one hour of sick leave for every 30 hours worked, up to 48 hours per year. Exempt employees are assumed to work 40 hours per week for the purposes of sick leave accrual, unless the employee’s workweek is normally less than 40 hours, in which case the accrued leave is based on the hours worked in a normal week. If, however, an employer already provides at least 48 hours of sick leave that meets or exceeds the requirements of the Act, the employer need not provide additional paid sick leave.
An employee begins to accrue paid sick leave immediately at the start of his or her employment and such leave may be used immediately once it is accrued. An employee who does not use a portion of the accrued sick leave may carry up to 48 hours of this leave to the following year – but an employer is not required to permit an employee to use more than 48 hours of paid sick leave per year.
An employer must allow employees to use the accrued paid sick leave under the following conditions:
- The employee (1) suffers a mental or physical illness, injury, or health condition impacting his or her ability to work; (2) needs to obtain a medical diagnosis or receive treatment for the illness, injury, or health condition; or (3) needs to obtain preventative medical care.
- An employee needs the accrued time to care for a family member who (1) suffers from a mental or physical illness, injury, or health condition; (2) needs to obtain a medical diagnosis or receive treatment for the illness, injury, or health condition; or (3) needs to obtain preventative care.
- An employee or the employee’s family member suffers domestic abuse, sexual assault, or harassment, and (1) seeks medical attention for the mental or physical impacts of the abuse, assault, or harassment or (2) seeks or obtains victims’ services, counseling, relocation, or legal services (or participates in a civil or criminal proceeding) related to the same.
- Finally, during a public health emergency if a public official has ordered the closure of either the employee’s workplace or the school or daycare of the employee’s child and the employee must be absent from work in order to care for the child.
Importantly, during a public health emergency, and for four weeks after the official termination of the emergency, employees must receive additional paid sick leave, which must be supplemental to any accrued paid sick leave. For employees who normally work 40 hours per week, those employees must receive 80 hours of sick leave. For those who work fewer than 40 hours, the additional leave is determined by how much they work or are scheduled to work during a two-week period. Employees need not provide documentation in order to use sick leave relating to a public health emergency.
Employers may not retaliate against employees for using sick leave accrued under this Act. Employers need not, however, pay out unused sick leave accrued under this Act upon separation from employment, but they must reinstate unused leave that was not converted to monetary compensation if the employee is rehired within six months.
Phase III: January 1, 2022 and Onward
Once Phase III begins, all Colorado employers, of any size, must comply with the Act’s provisions described in Phase II.
How to Prepare
Employers are required to notify their employees of their rights under this Act and also display the poster created by the Colorado Department of Labor and Employment.
Employers must maintain records for two years, documenting for each employee (1) hours worked, (2) paid sick leave accrued, and (3) paid sick leave used.
Employers should work with counsel to understand the requirements of confidentiality under this Act and to set up confidential files to maintain employee information.
Employers should review their paid sick leave policies to determine whether the policies are already in compliance with the Act, and/or revise as needed.
Because the Act is already in effect, employers should consult with legal counsel regarding their sick leave compliance. If you have any questions or concerns, or seek consultation on how to comply with the provisions of this Act, contact the author or editors of this alert, or visit our Labor & Employment Practice page to find an attorney in your area. Please also visit our COVID-19 Response Resource Center for more alerts on the many areas of law impacted by the pandemic.
Brian R. DeMocker, Associate
Peter T. Shapiro, Partner
Kayla D. Dreyer, Associate