On July 14, 2020, Colorado Governor Jared Polis signed the Colorado Healthy Families and Workplaces Act (Law). The law has two significant impacts. First, as a temporary measure, it immediately expands leave rights related to COVID-19 by requiring employers of any size (including employers with greater than 500 employees who are exempt from the Families First Coronavirus Response Act (FFCRA)) to provide leave for the reasons and the amounts set forth in the FFCRA to employees through the end of 2020. (For more information and summaries of the FFCRA please see our prior blog posts.)

Second, as a more permanent measure, beginning January 1, 2021, the Law will establish a new statewide paid sick leave law similar to laws enacted in other states. The changes taking effect in 2021 are summarized below.

Which employers and employees are covered? Between January 1, 2021 and December 31, 2021, employers with 16 or more employees must provide paid sick leave as specified in the Law. Effective January 1, 2022, all employers must provide paid sick leave as specified in the Law.

How much sick leave must be provided? Employees will earn at least one hour of paid sick leave for every 30 hours worked by the employee, and employees may earn and use a maximum of 48 hours of paid sick leave each year (unless the employer sets a higher limit). The employer may limit carrying over more than 48 hours of paid leave from year to year, and can also prohibit an employee from using more than 48 hours of sick leave in one year. Employers must provide additional accrued paid sick leave as necessary during public health emergencies for purposes specified in the Law, including but not limited to the need to self-isolate or seek medical care after experiencing symptoms of or being diagnosed with the illness that is the cause of the public health emergency; the need to care for a family member who is self-isolating or needs medical care after experiencing symptoms of or being diagnosed with such an illness; or inability to work due to a health condition that may increase the employee’s susceptibility to the illness.

When do employees begin accruing leave? Employees begin accruing paid sick leave when employment begins and may use the paid sick leave as it is accrued.

For what purposes may sick leave be used? An employee must be permitted to use sick leave where:

  • The employee has a mental or physical illness, injury, or health condition that prevents the employee from working, or needs to care for a family member with a mental or physical illness, injury, or a health condition;
  • The employee or a family member the employee is caring for needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
  • The employee or a family member the employee is caring for needs to obtain preventive care;
  • The employee or a family member has been the victim of domestic abuse, sexual assault, or harassment and the use of leave is to seek medical attention, obtain services from a victim services organization, obtain mental health, seek relocation, or seek legal services; or
  • A public health emergency exists and a public official has ordered closure of the employee’s place of business, the school or place of care of the employee’s child.

In what manner may an employee request use of his or her paid leave? An employer must allow an employee to use paid sick leave whether the request is made orally, in writing, electronically, or by any other means acceptable to the employer. Employers may create written policies with reasonable procedures for providing notice for use of paid sick leave when the need for leave is foreseeable, but cannot deny paid sick leave based on noncompliance with such policies where the employee provides otherwise-appropriate notice.

When may an employer require documentation? An employer may require reasonable documentation for paid sick leave of four or more consecutive work days.

What if an employer already has a paid time off or paid sick leave policy? Employers may use existing paid leave policies to satisfy the Colorado requirements so long as the terms are equal to or more generous than the Law requires.

What notices must an employer provide to its employees? Employers must provide notice to their employees, informing them of their right to leave under the Law. The notice must be in the form of written notice to employees and posters containing information about the Law. Employers may use posters and notices that will be published by the Division of Labor Standards and Statistics in the Department of Labor and Employment to satisfy the notice requirements, although they are not yet available. Notice requirements are waived during periods in which a business is closed for a public health emergency.

Are employees entitled to payment for unused sick leave upon termination? The Law does not require employers to pay employees for unused paid sick leave upon termination of the employment relationship. But an employee can recover paid sick leave as a remedy for a retaliatory action that prevented the employee from using the paid sick leave. Additionally, after termination of an employment relationship, if an employer rehires an employee within six months after separation, the employer must reinstate any paid sick leave that the employee accrued but did not use (and was not otherwise compensated for) during the employee’s previous employment.

What are the consequences for failure to comply? Employers who fail to provide leave under the Law may be subject to civil actions, payment of back pay, and additional consequences. Employers who willfully violate the notice provisions under the Law are subject to civil fines of up to $100 per violation.

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Employers should update or establish paid sick leave or paid time off policies consistent with the Law—immediately implementing the COVID-19 leave requirements and implementing by January 1, 2020 the long-term paid sick leave requirements. As the requirements change during the Law’s phased approach, employers should continue to update and ensure compliance with such policies including properly notifying employees.

For more information about the Law or other workplace policy issues, please contact one of the authors of this article or the Hogan Lovells lawyer with whom you work.