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Colorado Adopts Emergency Rules Requiring All Employers to Provide Public Health Emergency Leave as of January 1, 2021

On December 23, 2020, the Colorado Department of Labor and Employment (CDLE) issued new implementing the Healthy Families and Workplaces Act (HFWA) passed earlier this year. The most urgent clarification was an interpretation requiring employers to provide employees up to 80 additional hours of public health emergency leave beginning on January 1, 2021.

IMA’s original Alert summarizing the HFWA can be found here, but as a reminder, the HFWA requires employers in Colorado to provide three categories of paid leave:

• Up to 80 hours of emergency paid sick leave (EPSL) in 2020 for absences related to COVID-19 (an expansion of the federal Families First Coronavirus Response Act);
• Up to 48 hours of paid sick leave (PSL) beginning in 2021 for employers with 16+ employees and in 2022 for employers with 15 or fewer employees; and
• Up to 80 supplemental hours of public health emergency leave (PHEL) in the event of a public health emergency.

According to the statute, employers are required to offer PHEL to employees “on the date a public health emergency is declared.” C.R.S. § 8-13.3-405(1). That provision, however, did not specifically address whether the COVID-19 emergency, which was declared more than four months prior to the HFWA’s enactment, triggered the requirement for employers to provide PHEL. The CDLE’s emergency regulations, as well as a new (INFO) #6C issued the same day, clarify that each amendment, restatement, and extension of a public health emergency can constitute a declaration for purposes of requiring PHEL. Therefore, because the COVID-19 emergency has been into 2021, employers will need to provide PHEL as of January 1, 2021.

The regulations make clear that the PHEL must be offered regardless of whether the employer already provided paid leave related to COVID-19 in 2020. The CDLE also clarified that the requirement applies to employers of all sizes, despite the fact that small employers are not required to offer general PSL until 2022.

The amount of PHEL that each employee will receive may vary. Full-time employees working 40 hours or more each week must be provided 80 hours of PHEL. Part-time employees must be provided the greater of (1) the number of hours typically scheduled for work in a two-week period or (2) the average number of hours actually worked in a two-week period. Additionally, employers may count an employee’s other accrued, unused paid leave (including PTO, sick leave, or vacation) toward the number of hours of PHEL required, as illustrated in the following examples:

Example 1: Employee A is a full-time employee working 40 hours per week. On 1/1/21, Employee A has 30 hours of accrued, unused PTO under the employer’s policy. In order to ensure that Employee A has at least 80 hours of paid leave to be used for absences related to COVID-19, the employer must provide Employee A an additional 50 hours of PHEL on 1/1/21.

Example 2: Employee B is a part-time employee working 30 hours per week. Employee B has no accrued paid leave available on 1/1/21. In order to ensure that Employee B has at least 60 hours (the number of hours typically worked in a two-week period) of paid leave for COVID-19-related absences, the employer must provide Employee B 60 hours of PHEL on 1/1/21.

The full amount of supplemental PHEL provided to each employee must be made available for immediate use for the following reasons:

1. To self-isolate and care for oneself because the employee is diagnosed with, having symptoms of, obtaining a diagnosis or treatment for, or seeking preventive care for a communicable illness that is the cause of the public health emergency
2. To care for a family member who is diagnosed with, having symptoms of, obtaining a diagnosis or treatment for, or seeking preventive care for a communicable illness that is the cause of the public health emergency
3. Because a public health official or the employee’s employer has determined that the employee’s presence at work or in the community would jeopardize the health of others due to a communicable illness that is the cause of the public health emergency
4. To care for a family member when a public health official or the family member’s employer has determined that the family member’s presence at work or in the community would jeopardize the health of others due to a communicable illness that is the cause of the public health emergency
5. To care for a child or other family member whose school or child care provider is closed or unavailable due to a public health emergency, including when the school or place of care is physically closed but providing instruction remotely
6. When an employee is unable to work because of a health condition that may increase susceptibility or risk of a communicable illness that is the cause of the public health emergency

Employees must provide notice of the need for PHEL as soon as practicable, but employers may not require documentation to support the need for PHEL. Other than any COVID-related leave provided in 2020, employees are only entitled to the amount of PHEL once during the emergency, even if it is extended or amended by officials. PHEL may be used until four weeks after the emergency is declared over.

While the CDLE’s regulations are expected to face legal challenges, employers will be expected to comply with the regulations until they are modified or overturned. IMA will be closely monitoring any developments in this area and will continue to provide updates as soon as possible.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.