Colorado Enacts the “Healthy Families and Workplace Act”

By Elizabeth S. Wylie, Joseph A. Kroeger, Benjamin A. Nucci, Kevin M. Brown, and Anna M. Adams

The new Healthy Families and Workplace Act (“Act”) requires all private employers in Colorado to provide three types of paid sick leave to their Colorado employees: 1) COVID-19 emergency paid sick leave; 2) paid sick and safe time; and 3) public health emergency paid sick leave.  Enacted on July 14, 2020, after Governor Polis signed SB20-205, the Act implements these requirements in three phases, as follows:

Phase One – July 14, 2020 through December 31, 2020: All Colorado employers, regardless of size, must provide each employee paid sick leave for reasons related to the COVID-19 pandemic in the amounts and for the purposes specified in the federal Families First Coronavirus Response Act. Note, the Act cites the definition of employer found under Section 8-4-101(6) of the Colorado Wage Act, which includes companies “employing any person in Colorado.”

Phase Two – January 1, 2021 through December 31, 2021: Employers with 16 or more employees must provide paid sick and safe time (“PSST”) to their employees. One hour of PSST will accrue for every 30 hours worked, up to 48 hours of PSST per year. If an employer already provides at least 48 hours of PSST or similar leave to employees, the employer is not required to provide additional leave, so long as the existing leave policy permits leave at least as broad as and that covers all the reasons for PSST leave.

  Further PSST Details Include:

• Employees begin accruing PSST when employment begins; may use PSST as accrued; and may carry forward and use in subsequent calendar years, PSST not used in the year in which it was accrued.
• An employee may use accrued PSST to be absent from work when:
  • The employee has a mental or physical illness, injury or health condition; needs a medical diagnosis, care or treatment related to such illness, injury or condition; or needs to obtain preventive medical care;
  • The employee needs to care for a family member who has a mental or physical illness, injury or health condition; needs a medical diagnosis, care or treatment related to such illness, injury or condition; or needs to obtain preventive medical care;
  • The employee or the employee’s family member has been the victim of domestic abuse, sexual assault or harassment and needs to be absent from work for purposes related to such crime; or
  • A public official has ordered the closure of the school or place of care of the employee’s child or of the employee’s place of business due to a public health emergency, necessitating the employee’s absence from work. 
• An employee must use PSST in hourly increments, unless the employer allows PSST to be used in smaller increments.
• Employers are not required to pay out unused PSST at termination and must reinstate unused PSST if the employee is rehired within six months of termination.
• Employers may require reasonable documentation if an employee takes four or more consecutive days of PSST to establish that the PSST was used for a covered purpose.
• Employers must provide employees an additional amount of paid sick time during a public health emergency (“PHE-PST”) for absences related to the public health emergency in an amount based on the number of hours the employee works as follows:
  • For employees who normally work at least 40 hours per week, 80 hours.
  • For employees who normally work less than 40 hours per week, the amount of PHE-PST is based on the number of hours worked in a 14-day period.
  • Employees are not required to provide documentation to take PHE-PST.
• Employers may not retaliate against employees who use PSST or PHE-PST or otherwise exercise their rights under the Act.

Phase Three – January 1, 2022 and Forward: All employers—including those with fewer than 16 employees—must comply with the Act’s provisions described above.

Employers Should Consider Undertaking the Following Steps:

• Notify employees in writing of their rights under the Act and display a poster to be created by Colorado Department of Labor and Employment.
• Work with counsel to develop compliance forms, revise leave and accrual policies, and train managers and human resources staff on the new requirements.
• Maintain records relating to any leave provided under the Act for two years.  
• Establish a separate secure file to maintain the confidentiality of employee information, as required under the Act.
• Revise and broaden existing leave policies to encompass the required PSST leave categories.