CO Clarifies Employers’ Obligation to Provide Public Health Emergency Leave in 2021

Holland & Hart - Employers' Lawyers

Holland & Hart - Employers' Lawyers



In late 2020, the Colorado Department of Labor and Employment (CDLE) issued guidance confirming the COVID-19 pandemic had triggered the Healthy Families and Workplaces Act’s (HFWA) provision entitling all employees to up to 80 hours of supplemental public health emergency leave in 2021 (see CDLE Info Sheet # 6C). While the guidance alerted employers to their obligation to provide the benefit, it left several unanswered questions about the amount of emergency leave part-time and new employees are entitled to receive under the HFWA. On February 23, 2021, the department issued revisions to the wage protection rules answering the questions (see 7 CCR 1103-7).

General requirements under the HFWA

As of January 1, 2021, the HFWA requires most employers with 16 or more employees to let them accrue up to 48 hours of paid sick and safe leave annually. They may take the leave for various health- and safety-related needs. On January 1, 2022, all covered employers, including those with fewer than 16 employees, will have to provide paid sick and safe leave to their employees (for more details, see CDLE Info Sheet # 6B).

In addition to the paid sick and safe leave, the HFWA requires employers to provide up to 80 hours of public health emergency leave after a declaration of a public health emergency by governmental authorities. The leave must be made available throughout the duration of the emergency and until four weeks after it ends. Most important, as of January 1, 2021, covered employers of all sizes, including those with fewer than 16 employees, must provide the emergency leave.

Employees may take the public health emergency leave for the following reasons related to the communicable illness that caused the emergency:

  • They need to self-isolate after being diagnosed with or having symptoms of the illness;
  • They’re seeking a diagnosis, treatment, or care (including preventive care) for the illness;
  • They were excluded from work by the employer or governmental health official because they had been exposed to or have symptoms of the illness;
  • They’re unable to work because of a health condition that increases the susceptibility or risk of the illness; or
  • They are caring for a family member experiencing circumstances in the first three categories or whose school or care provider is unavailable or closed because of the emergency.

Leave taken under the federal Families First Coronavirus Response Act in 2020 may not be counted against the public health emergency leave in 2021. In other words, you must provide a new bank of 80 hours of public health emergency leave regardless of whether they provided paid leave for COVID-19-related reasons in 2020 under the federal law.

Additionally, the emergency leave is provided only once per emergency. Employees may use all 80 hours at once or divide them among multiple qualifying events. Unlike with the paid sick and safe leave, you cannot require employees to provide documentation for public health emergency leave.

Part-time employees’ entitlement to emergency leave

The latest wage protection rules provide that part-time employees (those who normally work less than 40 hours in a week) are entitled to receive public health emergency leave in the greater of (1) the number of hours they are scheduled to work or be on paid leave in the 14-day period after the emergency leave is requested; or (2) the number of hours they actually worked in the 14-day period before (a) the declaration of the public health emergency or (b) the leave request, whichever is later.

The new rules provide employers with a clear formula to calculate the amount of emergency leave to which part-time employees are entitled. This should reduce challenges associated with your attempts to comply with the new law and ease some of the administrative burdens associated with the HFWA.

New hires entitled to emergency leave

The February 23 revisions also make clear that new employees who are hired during a public health emergency are also entitled to the emergency leave. After January 1, 2021, the entitlement begins on the employee’s first day of employment. The previous rules appeared to exclude new hires because they linked the amount of emergency leave to the number of hours an employee worked in the 14-day period before or after January 1, 2021, or to the hours an employee worked before a public health emergency’s declaration.

The new rules clearly state all employees, even new employees without any work history with the employer, are entitled to public health emergency leave as well.

Emergency leave takeaways

Be aware the HFWA mandates covered employers of all sizes to provide employees a bucket of up to 80 hours of public health emergency leave for qualifying reasons. The amount of leave will depend on an employee’s full-time or part-time status. The HFWA’s mandates are complex and specific. You should review your paid leave policies to ensure they are fully compliant with the revised rules.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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