New State of Coloardo Sick Leave Law effective Jan 1, 2020

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Colorado Governor Signs Paid Sick Leave Act into Law
By Harris Mufson, Evandro Gigante, Laura Fant and Abigail Rosenblum on July 21, 2020

Article originally posted by the Law and the Workplace July 21, 2020

Amid the COVID-19 pandemic, Colorado Governor Jared Polis signed the Healthy Families and Workplaces Act (“the Act”) into law. Beginning next year (or later for small employers), the Act will require employers in Colorado to provide employees with up to six paid sick days a year – and more if there is a public health emergency. The Act also extends immediate COVID-related paid sick leave protections to employees not covered by the federal Families First Coronavirus Response Act (“FFCRA”). Colorado now joins 12 other states (plus numerous counties and cities) that have passed statewide paid sick laws.

Effective immediately through December 31, 2020, the Act fills certain coverage gaps in the federal FFCRA, which makes paid sick leave available to certain employees affected by the COVID-19 pandemic but does not apply to employers with 500 or more employees. The Act extends paid sick leave coverage equivalent to that provided under FFCRA to all employees in the state, regardless of employer size. More information about FFCRA can be found in our prior blogs here, here and here.

More broadly, beginning on January 1, 2021, employers with more than 15 employees must provide employees with paid sick leave to be used for: (i) employees’ mental or physical illnesses, need for diagnosis or treatment, or preventative care; (ii) caring for sick family members (defined as a person who is related by blood, marriage, civil union, or adoption; a child to whom the employee stands in loco parentis or a person who stood in loco parentis to the employee when the employee was a minor; or a person for whom the employee is responsible for providing or arranging health-or safety-related care) requiring diagnosis, treatment, or preventative care; (iii) victims of domestic violence, harassment, or sexual abuse or need to assist family members who are victims of such conduct, and seek medical attention or counseling relating to such abuse; or (iv) instances where a public health official has ordered the closure of the employee’s place of business or the employee’s child’s school or place of care due to a public health emergency and the employee must therefore provide care to the child. Smaller employers will begin to be covered under the Act beginning January 1, 2022.

Beginning on the date of hire (or the applicable effective date of the Act, whichever is later), covered employees will accrue one hour of paid sick leave for every 30 hours worked, up to 48 hours, or six eight-hour workdays of accrued time. Employees can roll over unused paid sick time, though employers can limit use of leave to 48 hours in any given year. Employers alternatively may elect to frontload the full annual allotment of paid sick leave to an employee at the beginning of each year.

An employee may be required to use paid sick leave in hourly increments unless the employer specifically allows paid sick leave to be taken in smaller increments of time. If an employee uses paid sick leave for four or more consecutive work days, the employer may require reasonable documentation that the paid sick leave is for a purpose that is authorized by the Act. An employer is not required to pay out unused, accrued paid sick leave upon termination, resignation, retirement, or other separation from employment.  Employers will be required to post notices to inform employees about their rights under the Act and to document and track sick time that is accrued and used.

The Act also contains provisions relating to public health emergencies, which will require employers to supplement employees’ otherwise available paid sick leave such that employees may take up to an additional two weeks of paid sick leave during a public health emergency, even if sick leave under the general provisions has been exhausted. However, employers may count an employee’s accrued but unused time under the Act’s general paid sick leave provisions toward this supplemental public health emergency sick leave requirement.

The supplemental leave will be available until four weeks after the official termination or suspension of the public health emergency and may be used by employees:

• Self-isolating due to a positive diagnosis, experiencing symptoms, seeking medical treatment or preventative care with respect to the illness causing the public health emergency;
• Suffering from a preexisting condition that would make the employee more susceptible to serious harm if infected with the illness causing the public health emergency;
• Where public health officials or the employer have deemed it to be unsafe for the employee to come to work due the employee’s exposure to, or displaying symptoms of, the illness causing the public health emergency; or
• If caring for a family member in the above circumstances, or if they must care for a child or other family member whose school or child care facility is closed due to the public health emergency.

Unlike the use of paid sick leave for the general reasons discussed above, an employer may not require an employee to provide documentation in order to take supplemental paid sick leave under the public health emergency provisions of the Act.

Employers with operations in Colorado should review their policies on paid sick leave, especially as it relates to COVID-19, and begin making necessary revisions to comply with the law. We will continue to report on any further developments with regard to this law and other paid leave laws nationwide.