Paid Sick Leave Requirements under the Healthy Families and Workplaces Act, 1220 COBJ, Vol. 49, No. 11 Pg. 46
| Author | BY JOHN HUSBAND AND MING LEE NEWCOMB |
| Position | Vol. 49, 11 [Page 46] |
LABOR AND EMPLOYMENT LAW
BY JOHN HUSBAND AND MING LEE NEWCOMB
This article discusses Colorado's Healthy Families and Workplaces Act, which creates new paid sick leave requirements for most employers.
In an extraordinary and unique legislative session interrupted and then reconvened, the Colorado General Assembly passed a number of employee benefits bills that will significantly impact employers. The most significant of these bills, the Healthy Families and Workplaces Act (HFWA or Act), was signed into law on July 15,2020 by Governor Polis.[1] With its passage, Colorado became one of only 14 states that mandate paidsi deleave, in addition to Washington, D.C.[2] and a growing number of cities and counties across the country. Colorado also passed a sick leave provision in response to the COVID-19 pandemic, as did New York.3
The HFWA creates basic paid sick leave requirements for almost all public and private employers in Colorado and establishes two weeks of supplemental paid sick leave in the event of public health emergencies.4 Additionally, the HFWA outlines COVID- 19-specific paid sick leave requirements, which operate through the end of 2020.5 Because the COVID- 19-specific sick leave provisions will expire at the end of the year, this article focuses on the paid sick leave provisions, both basic and supplemental, that will become effective in 2021.
Basic Paid Sick Leave
The HFWA's requirements for basic paid sick leave take effect on January 1, 2021. In its first year, the Act will apply to almost all public and private employers with 16 or more employees.6 On January 1, 2022, the exemption for employers with 15 or fewer employees ends and coverage expands to almost every in-state employer.[7] When determining their number of employees, employers should count all '"full-time and part-time employees within the United States,' 'employees onleave,'and employees in'separate establishments or divisions' of the business."8
Accrual and Payment
Under the Act, employees must accrue at least one hour of paid sick leave for every 30 hours worked.9Accrual begins at the start of employment, and the sick leave can be used immediately,10 with employers maintaining the ability to "loan" paid sick leave to employees before its accrual.11 Usage and accrual caps at 48 hours per year,12 and up to 48 hours of accrued time can roll over at year's end.13 For exempt employees, the accrual rate assumes a 40 -hour work week.[14] However, if an employee works fewer than 40 hours per week, the accrual rate reflects the hours of the employee's normal workweek.15
Employees must use their accrued sick leave in hourly increments, unless the employer allows the use of smaller increments.16 When leave is used, employers must pay at least the applicable minimum wage,[17] with leave paid at the same hourly rate or salary and with the same benefits that an employee normally earns.[18] Employees who receive commission- or sales-based pay should receive the greater of either the minimum wage rate or their hourly or salaried rate.19 Notably, employers do not need to include overtime, bonuses, or holiday pay when calculating the hourly or salaried rate.20
Employer Exemptions and Changes in Employment
In addition to the temporary exemption expiring in 2022 for employers with 15 or fewer employees, the HFWA creates a permanent exemption for federal government employees21 and employees subject to the federal Railroad Unemployment Insurance Act.22 Further, employers under collective bargaining agreements maybe exempt from specific HFWA provisions if a collective bargaining agreement already provides for and does not diminish employees' rights to "equivalent or more generous" paid sick leave.23
Employers with a broader paid leave policy (i.e., allowing paid time off for any purpose) can also comply with the HFWA, but only if the policy provides at least the same amount of time off, allows paid time off for all conditions and situations covered by the HFWA, and matches the Act's accrual rate.24 In other words, employers that offer a more generous paid leave policy do not need to provide additional basic paid sick leave. When making this determination, however, employers should carefully consider whether their time-off policies for temporary, seasonal, and part-time workers adhere to HFWA guidelines.
The HFWA explains how certain changes in employment affect employees' accrued time. First, an employer does not need to reimburse accrued sick leave after an employee's termination, resignation, retirement, or separation.25 Second, if an employee transfers to a different division or location but maintains the same employer, the employee keeps any accrued paid sick leave.26 Lastly, in the event of a business's acquisition, employees are entitled to the sick leave accrued under their original employer.27
Sick Leave Usage
Employees are entitled to paid sick leave in a broad range of situations set forth in the HFWA and may request leave orally, in writing, electronically, or via any other means acceptable to the employer.28 Employees can use accrued leave when a mental or physical illness, injury, or other health condition prevents them from working, or to obtain medical diagnoses, care, or treatment as well as preventative medical care.29 The HFWA also allows employees to use sick leave to care for a family member with a mental or physical illness, or to help a family member get medical services.30
Sick leave must also be allowed when an employee or an employee's family member has been the victim of domestic abuse, sexual assault, or harassment.31 In such situations, sick leave may be used to seek medical attention, victim or legal services, or mental health counseling, or to relocate.32 The HFWA also specifies that sick leave can be used when a public health emergency closes an employee's place of business, or closes schools and other child-care facilities, and an employee needs leave to care for a child.33
For all the above-described situations, an employer cannot condition paid sick leave on disclosure of details related to an employee or employee's family member's health information, or the domestic violence, sexual assault, or harassment.34 If an employee divulges health or safety details about themselves or family members, this information must be treated as confidential and stored in a file separate from the employee personnel files.35
Foreseeable and Extended Absences
If an absence is foreseeable (i.e., scheduling preventative care), the HFWA requires that employees make a good faith effort to notify their employer, include the absence's duration in the notification, and attempt to schedule their absence in a way that minimizes disruption to the business.[36] An employer may create reasonable procedures for notification of foreseeable employee absences, though paid sick leave cannot be denied due to noncompliance with those policies.37 And an employer may not condition sick leave on an employee finding a replacement worker during the employee's absence.38
If an employee needs to miss more than four consecutive days at work, the employer can request reasonable documentation.39 Notably, this documentation is not necessary for an employee to take paid sick leave, but it can be required as soon as an employee can reasonably provide it. Because only "reasonable documentation"40 can be required and leave cannot be conditioned on disclosure of specific health or safety details, an employee only needs to show a valid reason for the extended leave.
Public Health Emergency Supplemental Sick Leave
In addition to basic sick leave, the HFWA provides supplemental leave for public health emergencies.41 The Act defines a public health emergency as "an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent" for which an emergency is declared by the governor or a federal, state, or local public health agency;42 or "a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor."43
For employees who work 40 hours or more per week, the HFWA allows 80 hours of paid supplemental sick leave per year for public health emergencies.44 Forty-eight of the 80 hours must be provided for any HFWA-approved purpose, emergency or not, while the remaining 32 hours are reserved for emergency-related purposes.45 Employees who work less than 40 hours per week should receive leave equal to o r greater than either the time they would be scheduled in a 14-day period or the average amount of time they work across 14 days.46
This supplemental paid si deleave becomes available to use from the start of the public health emergency and continues until four weeks after the public...
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