If Pain, Yes Gain—Part 107: Colorado Amends Paid Sick Leave Law; Public Health Emergency Leave for COVID-19 Ends this Week

What You Need To Know:

• On June 2, 2023, Colorado formally expanded its covered reasons for use of paid sick leave under the Colorado Healthy Families and Workplaces Act (HFWA) when Governor Jared Polis signed into law Senate Bill 23-017 (SB 23-017).
• In addition to the HFWA’s original covered absences, once effective, the amended list of covered reasons for use of paid sick leave will include absences related to bereavement leave and certain closures or evacuations due to inclement weather, loss of power, or other unexpected events.
• The SB 23-017 amendments go into effect on August 7, 2023.
• In addition, the Colorado public health emergency leave (PHEL) benefit, which is also covered by the HFWA, will no longer be available for covered absences related to COVID-19 as of June 9, 2023.

Since 2020, Colorado has been one of the most active jurisdictions in the country in terms of imposing general and COVID-19 paid sick leave mandates on employers,[1] and subsequently amending corresponding regulations and administrative guidance. The first half of 2023 has seen a number of state and local paid sick leave developments outside of Colorado.[2] However, earlier this month Colorado joined in, adding further volatility to the nation’s constantly changing paid sick leave patchwork.

Here is the latest on general paid sick leave and PHEL benefits under the Colorado HFWA.

Colorado Paid Sick Leave Update – Covered Reasons for Use

On April 28, 2023, the Colorado legislature passed amendments to the HFWA through SB 23-017. As noted above, on June 2, Governor Polis signed the amendments into law.

The amendments take effect on August 7, 2023. As of this date, Colorado employers will be required to allow eligible employees to use available paid sick leave under the HFWA for several new covered reasons. The specific new covered reasons include when the employee needs to:

• Grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a covered family member;[3]
• Care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the closure of the family member’s school or place of care; or
• Evacuate the employee’s place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the need to evacuate the employee’s residence.

These new covered reasons for use are in addition to the following existing covered reasons under the HFWA:

• An employee’s own mental or physical illness, injury, or health condition that prevents the employee from working, including diagnosis, care, or treatment, as well as preventive medical care;
• Caring for a covered family member who has a mental or physical illness, injury, or health condition, or who needs to obtain a medical diagnosis, care, or treatment, or preventive medical care;
• Certain absences related to the employee or their covered family member’s status as a victim of domestic abuse, sexual assault, or harassment; or
• Absences due to a public health emergency where a public official has ordered closure of: (i) the employee’s place of business, or (ii) the school or place of care of the employee’s child and the employee needs to be absent from work to care for their child.[4]

As a reminder, under the HFWA employers generally must allow eligible employees to accrue paid sick leave at a rate of at least one hour for every 30 hours worked, up to 48 hours per year. Employees are entitled to carry over up to a maximum of 48 hours at year-end. Regardless of carryover balances, employees can use a maximum of 48 hours of paid sick leave per year.

Colorado Public Health Emergency Leave Update

Unlike many of the state and local COVID-19 related paid leave mandates that have been enacted over the last three-plus years, the HFWA’s Public Health Emergency Leave mandate has no sunset date and can be triggered when a covered public health emergency is declared.  However and notably, eligible employees’ ability to use available PHEL benefits for covered absences related to COVID-19 will sunset on June 8, 2023, i.e., four weeks after the expiration all applicable federal, state and local public health emergency declarations due to COVID-19. Employers must continue to provide public health emergency leave for covered COVID-19 reasons through June 8.

As a reminder, the Colorado PHEL mandate requires covered employers to provide up to 80 hours of paid leave during a declared qualifying public health emergency. With respect to COVID-19, covered absences included, but were not limited to, absences for an employee’s (a) own COVID-19 symptoms, quarantine, testing, vaccination, inability to work due to health conditions that may increase an employee’s susceptibility to COVID-19, and (b) need to care for a covered family member who experienced a covered COVID-19 related event.

As noted above, Colorado PHEL is broader than COVID-19. This means that future (a) COVID-19 or (b) non-COVID-19 qualifying public health emergency declarations could spark another round of PHEL benefits in the state.[5] We will continue to track federal, state, and local public health emergency declarations and their impact on Colorado PHEL.

Colorado employers should take steps now to account for the amended HFWA by the August 7, 2023 effective date.  These are among the actions to consider:

• Review existing sick leave policies and either implement new policies or revise existing policies.
• Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the amendments.
• Monitor the Colorado HFWA website for further information.

As the paid leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with the Colorado Paid Sick Leave mandate and sick leave requirements generally.  To stay up to date on paid leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list.

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[1] Seyfarth’s prior Legal Updates on Colorado paid sick leave can be found here, here, here and here.

[2] The two biggest paid sick leave or paid time off developments of 2023 to date occurred in Illinois and Minnesota. Including these two new statewide mandates, which both go into effect on January 1, 2024, and Colorado, the states that have enacted a statewide general non-COVID-19 paid sick leave or paid time off mandate include: (1) Arizona; (2) California; (3) Colorado; (4) Connecticut; (5) Illinois (PTO law) (effective 1/1/2024); (6) Maine (PTO law); (7) Maryland; (8) Massachusetts; (9) Michigan; (10) Minnesota (effective 1/1/2024); (11) Nevada (PTO law); (12) New Jersey; (13) New Mexico; (14) New York; (15) Oregon; (16) Rhode Island; (17) Vermont; and (18) Washington. In addition, (19) Virginia has a statewide paid sick leave law that applies only to certain home health workers. There also are non-COVID-19 paid sick leave or paid time off mandates in (20) Washington, D.C. and more than two dozen municipalities.

[3] Under the HFWA and related guidance, “family member” means (a) an employee’s immediate family (related by blood, adoption, marriage, or civil union), (b) 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 (c) a person for whom the employee is responsible for providing or arranging health or safety-related care.

[4] For purposes of both general paid sick leave and PHEL under the HFWA “public health emergency” means (a) an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which (I) an emergency is declared by a federal, state or local public health agency; or (II) a disaster emergency is declared by the governor; or (b) a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

[5] For multiple months in late-2022 and early-2023 Colorado PHEL benefits were available for covered absences related to flu, respiratory syncytial virus (RSV), and similar respiratory illnesses, in addition to COVID-19.