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The Colorado Department of Labor and Employment (CDLE) recently issued new on December 23, 2020, just one holiday week before the Healthy Workplaces and Families Act (HFWA) was to take effect. The rules clarified that employees in Colorado must be provided up to 80 hours of public health emergency leave (PHEL) beginning on January 1, 2021, for absences related to COVID-19. (IMA’s Alert regarding the announcement can be found here, and our original Alert summarizing the HFWA can be found here.)

The CDLE’s announcement created a host of questions for employers as they scrambled to update their leave policies by January 1, 2021. Below is more information on some of the most common PHEL issues faced by employers.

We already provided employees with 80 hours of paid leave in 2020 for absences related to COVID-19 – are we required to provide additional PHEL in 2021?

Yes. The CDLE has clarified that the HFWA requires a new supplement of up to 80 hours of PHEL. As discussed below, the Families First Coronavirus Response Act (FFCRA) paid leave requirements were not extended for 2021, but qualifying employers may be entitled to tax credits for voluntarily continuing to provide those leaves until March 31, 2021.

How do the HFWA’s PHEL requirements differ from the paid leave requirements under the FFCRA?

The latest COVID-19 relief bill did not extend the requirement to provide paid leave under the FFCRA, but it allows qualifying employers to claim payroll tax credits if they continue to offer those leaves voluntarily through March 31, 2021. Therefore, employers are no longer required to offer emergency paid sick leave (EPSL) and emergency family and medical leave (EFML) in 2021. In Colorado, however, employers are required to offer PHEL to all employees as of January 1, 2021.

While there is significant overlap between the covered reasons for EPSL/EFML and PHEL, employers should note that they are not exactly the same. For example, both EPSL and PHEL are allowed when an employee is required to quarantine because of a public health or advised to do so by a health care provider. But the HFWA also allows PHEL when an employee’s employer determines that an employee’s presence at work or in the community would jeopardize the health of others. Additionally, PHEL is required when an employee is unable to work because of a health condition that may increase susceptibility or risk of COVID-19, whereas under the FFCRA, EPSL was only available for those employees if they were directly advised by their health care provider to quarantine or self-isolate. Please see our original Alert on the HFWA for more detail on the all of the covered reasons for each type of leave.

Do the PSL and PHEL requirements apply to governmental employers?

Yes. The HFWA applies to all private and public employers in Colorado, excluding only the federal government and employees covered by the federal Railroad Unemployment Insurance Act.

Our company has employees in Colorado and in other states – do we need to provide PSL and PHEL to all of our employees?

No. The HFWA requirements only apply to employees working in Colorado.

We frontloaded each employee’s PSL as of January 1, 2021 so that each full-time employee began the year with 48 hours of available PSL – do we need to provide an additional 80 hours of PHEL?

No. PHEL under the HFWA is a supplement to employees’ accrued, unused PSL. Employers must provide each employee enough additional PHEL so that every employee begins the public health emergency with 80 total hours of paid leave (or proportionately less for part-time employees). If a full-time employee began 2021 with 48 hours of PSL, the employer would need to provide the employee an additional 32 hours of PHEL to reach the 80-hour minimum. The PHEL can only be used for specific reasons related to the public health emergency, whereas PSL can be used for all of the qualifying reasons under the HFWA, including the covered reasons for PHEL.

We provide all full-time employees 80 hours of PTO at the beginning of each year, which can be used for any reason – do we need to provide those employees an additional 80 hours of PHEL?

No. PHEL under the HFWA is a supplement to employees’ accrued, unused PSL. Employers must provide each employee enough additional PHEL so that every employee begins the public health emergency with 80 total hours of paid leave (or proportionately less for part-time employees).

However, if an employer’s PTO policy only applies to full-time employees, the employer would need to provide PHEL to its part-time employees right away. Part-time employees are entitled to 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. Part-time employees must also begin accruing PSL at a rate of at least one hour for every 30 hours worked, up to a maximum of 48 hours per year.

If an employer uses a general PTO policy to fulfill its leave obligations under the HFWA, the CDLE also require the employer to notify employees that its PTO policy is sufficient to cover the HFWA requirements, that the leave can be used for all of the reasons covered by the HFWA (including reasons related to the public health emergency), and that additional HFWA leave will not be provided when employees use all of their available leave for other reasons.  Also keep in mind employers cannot require documentation to support the need for PHEL, and accrued PTO must be paid out to terminating employees under CO wage law while PSL and PHEL do not have that requirement.

Can we require employees to use their accrued PSL or PTO before taking PHEL?

No. If an employee takes leave for one of the covered reasons for PHEL, the CDLE require employers to deduct the time from the employee’s PHEL first and only start counting against the employee’s other accrued leave once that is exhausted. Employees can only use any supplemental PHEL for the specific covered reasons related to the public health emergency, whereas PSL (or other PTO under the employer’s policy) can be used for all of the covered reasons for PSL as well as the covered reasons for PHEL.

Our original Alert on the HFWA lists all of the qualifying reasons for the two leaves.  As a reminder, though, employees may use PHEL 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

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

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.