Fox Rothschild LLP

Colorado employers received important guidance from the state on December 23, 2020 that clarifies how paid leave rules will apply in 2021.

The Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics (Division) adopted temporary or emergency rules that clarify a few points related to the Healthy Families and Workplaces Act (HFWA). On the same day, the Division also issued an Interpretive Notice & Formal Opinion (INFO) on paid leave.

In a previous alert, we outlined the key provisions in Colorado’s new laws, including the HFWA. Based on the recent guidance, we want to share a few important points of change and clarification.

First, the Division confirmed that the public health emergency supplement (PHE Supplement) is required on January 1, 2021. By way of reminder, the PHE Supplement adds to the number of hours of sick leave accrued to bring employees up to the following paid sick leave allotments immediately:

  • for employees who normally work 40 or more hours in a week, at least 80 hours
  • for employees who normally work fewer than 40 hours in a week, at least the greater of either the number of hours the employee (a) is scheduled for work or paid leave in the upcoming 14-day period, or (b) actually worked on average in the 14-day period prior to the declaration of the PHE

The Division stated that, at this time, the 80-hour PHE Supplement requirement continues until at least January 24, 2021 (four weeks after the expiration of the latest emergency declaration). However, the PHE Supplement requirement will extend deeper into 2021 if further renewed, extended, and/or amended emergency declarations continue to be issued (as has occurred approximately monthly since March 2020), or a different emergency declaration is issued in 2021. An employer’s PTO/vacation policies can satisfy the HFWA requirements, but we recommend certain revisions to ensure compliance.

A second point of clarification will answer the question of many clients as to whether they must provide 80 hours of leave in 2021 if they already provided 80 hours of COVID-19 leave in 2020. The answer is yes. The Division clarified that 2021 COVID leave (aka PHE Supplement) is a new supplement of up to 80 hours based on an emergency declaration. It is not a continuation of the 2020 COVID leave that was based on federal law.

Finally, for small employers, the most notable clarification is that employers with fewer than 16 employees must provide the 80-hour PHE Supplement on January 1, 2021. Although employers with fewer than 16 employees are exempt from providing the 48-hour general paid leave until 2022, they are not exempt from the 80-hour PHE Supplement. This was not clear until the December 23, 2020 INFO.

Regulations and guidance frequently change as the Division will strive to provide regular updates and clarifications. Employers should take care to review their sick leave and COVID-related policies to ensure compliance and consult experienced employment counsel with any questions.

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