On Aug. 7, 2023, Colorado expanded employee rights to additional uses of paid and protected sick leave with the addition of new categories for which employees can use sick leave.

Since 2022, the Colorado Healthy Families and Workplace Act (“HFWA”), which was originally passed in response to the COVID-19 pandemic, has required all employers in the state of Colorado regardless of size to provide all of their employees with paid sick leave. The HFWA mandates paid sick leave be given to all employees, including part-time, temporary and migratory laborers, with the exception of federal government employees.

As a brief reminder, under the HFWA, paid sick leave must accrue at a minimum rate of one hour per every 30 hours worked, but employers may cap paid sick leave accruals at no less than 48 hours per year. Up to 48 hours of accrued leave may be carried over to the subsequent year. Employees must be compensated for sick leave at the same hourly rate as ordinarily received. Employers may request “reasonable documentation” for paid sick leave only if the employee is absent for four or more consecutive work days and may request no more than is needed to show a valid reason for leave.

Previously, the HFWA permitted employees to use paid sick leave for the following reasons:

• the employee’s inability to work due to a mental or physical illness, injury or health condition
• the employee’s need to obtain preventive medical care (including vaccination), or medical diagnosis/care/treatment.
• the employee’s needs due to domestic abuse, sexual assault or criminal harassment, including medical attention, mental health care or other counseling, legal or other victim services, or relocation
• to care for a family member who needs the sort of care listed above
• the employee’s need for leave during a public health emergency when a public official closed the employee’s workplace or the school or place of care of the employee’s child.

Effective Aug. 7, 2023, employees may take protected paid leave for the following additional uses:

• bereavement, or financial/legal needs after a death of a family member
• when an employee, due to inclement weather, power/heat/water loss or other unexpected event, the employee must evacuate their residence or care for a family member whose school or place of care was closed

For policy background, the change to the HFWA was sponsored by Reps. Junie Joseph and Jenny Willford of Boulder and Adams counties, respectively, and Sen. Faith Winter of Adams, Broomfield and Weld counties. The HFWA bill was introduced in the aftermath of the 2021 Marshall fire and Boulder fire, which caused the evacuation of over 37,000 and 19,000 people respectively. In her testimony introducing the bill, Sen. Winter made reference not only to these wildfires but also the significant deviations in heat and cold during the previous year, which led to statewide closures of schools. Extreme weather conditions have contributed to a significant increase in the frequency and size of destructive fires in the state, with two of the five most destructive fires having occurred in the past three years. Sen. Winter’s testimony indicates the growing concern of Coloradans regarding variations in weather and how extreme weather can impact the employment relationship.

Employers should review and update their sick leave or paid time off policies to include the bill’s additional bases for paid sick leave under the HFWA immediately. Under the HFWA, employers are required to notify each employee, in writing, of their right to take paid leave (including their right to protection from retaliation for requesting or using leave) and the permissible purposes for which leave can be used.

Employers are also required to display in the workplace an informational poster setting forth their rights under the HFWA. Employers who willfully violate these notice requirements may be subject to civil fines up to $100 for each violation. Moreover, as a result of paid sick leave falling under the definition of “wages” pursuant to the Colorado Wage Claim Act, failure to comply with these requirements can expose employers to liability for unpaid wages (however, unused paid sick leave need not be paid upon termination of employment).

In Rietheimer v. United Parcel Service, Inc., a class action lawsuit filed in the U.S. District Court for the District of Colorado earlier this year, a Colorado UPS driver sued the employer for failure to provide paid sick leave. The case is still in the early stages, however, its result may establish a viable cause of action against employers who make deductions from wages for time, which should be paid as paid sick leave. As of Jan. 1 of this year, employers who fail to provide wages owed within 14 days face an automatic penalty of the greater of two times the amount of unpaid wages or $1,000, with a 50% or $2,000 increase for willful violations.

Brownstein Summer Associate Anthony Georgescu contributed to this alert.