Gov. Jared Polis’ decision not to extend Colorado’s COVID-19 Public Health Emergency (PHE) means welcome changes for employers when it comes to complying with the paid leave requirements of the state’s Healthy Families and Workplaces Act (HFWA).
Under the HFWA, employers in Colorado have been providing employees with two types of paid leave since Jan. 1, 2021:
- Accrued paid sick leave for various sick- and safety-related reasons.
- Supplemental public health emergency leave for PHE-related needs.
The supplemental PHE leave is only required during a PHE, which includes the federal PHE declaration related to COVID-19 and the Colorado state disaster emergency related to COVID-19.
To comply with the supplemental PHE leave requirement, employers have had to add enough PHE leave to an employee’s unused accrued paid sick leave bank at the time of their leave request to ensure the worker could take 80 hours of total paid leave (or less for part-time employees) for PHE-related needs. Under the HFWA, supplemental PHE leave may be used until four weeks after the official termination or suspension of the PHE.
Gov. Polis allowed the Executive Order giving rise to the PHE in Colorado to expire on May 5, 2023. The COVID-19 national PHE is set to expire on May 11, 2023, which will trigger the four-week countdown for supplemental PHE leave. This means that employees may use supplemental PHE leave until June 8, 2023. Note that if the federal PHE for COVID-19 does not end on May 11, 2023, the supplemental PHE leave requirements will continue until four weeks after it ends.
The end of the PHE is big news for employers, and it will have effects beyond lowering paid leave requirements. For example, because leave requirements are reduced, employers that could not satisfy their HFWA obligations through a general paid time off policy during the PHE may be able to now. (Note that employers that want to use their general paid time off policies to meet their HFWA obligations must have a carefully drafted policy that is administered consistently with the HFWA.) Additionally, employers can now ask for reasonable documentation for HFWA leave requests without fear that they are violating the law. During the PHE, employers found this area difficult to navigate as they were not permitted to ask for documentation from employees related to supplemental PHE leave.
The requirement that employers provide accrued paid sick leave for various sick- and safety-related reasons remains and does not expire with the end of the PHE. The HFWA requires employers to provide one hour of accrued paid sick leave for every 30 hours worked up to 48 hours in a year. This amount can also be frontloaded at the beginning of the year. This leave can be used for the following purposes:
- A mental or physical illness, injury, or health condition that prevents work.
- Obtaining preventive medical care (including a vaccination), or a medical diagnosis, care, or treatment, of any mental or physical illness, injury, or health condition.
- For victims of domestic abuse, sexual assault, or criminal harassment: for leave for medical attention, mental health care or other counseling, legal or other victim services, or relocation.
- To provide care for a family member who has a mental or physical illness, injury, or health condition, or who needs the sort of care listed in category two or three above.
- When an employee is required to care for a child due to a public health emergency in which a public official closes the employee’s place of business or their child’s school or place of care.
Because the expiration of supplemental PHE leave is an important change to what has been required under the HFWA, and because the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics has issued new guidance since the law was enacted, we recommend that employers take this opportunity to revisit their HFWA policies to ensure compliance and best practices. This is especially true for employers who have not revised their policies since the HFWA took effect.
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