Although we are all more than familiar with the Covid-19 pandemic, Colorado businesses may not be aware of new employee sick leave laws, presently in effect, relating to the pandemic.
Pursuant to the Healthy Families and Workplaces Act ("HFWA"), which was signed into law on July 14, 2020, virtually all private employers in Colorado, of any size, must provide paid sick leave to employees for Covid-19-related absences in accordance with the provisions of the federal Families First Coronavirus Response Act ("FFCRA"). This requirement is presently in effect and will remain in effect until December 31, 2020, unless continued by additional legislation.
Covid-19 Sick Leave Requirements
Most of HFWA's provisions, which establish minimum requirements for Colorado employers to offer paid sick leave to employees (and which are beyond the scope of this article), do not take effect until 2021 or 2022. Importantly, however, HFWA immediately requires all employers in Colorado, regardless of size, to provide employees with paid sick leave equivalent to 2 weeks (80 hours) for full-time employees, or equivalent to the amount of time regularly worked in a two-week period for part-time employees, for any of the following reasons:
- Quarantine/Isolation Order-when the employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
- Self-Quarantine-when the employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
- COVID-19 Symptoms-when the employee is experiencing symptoms such as a fever, dry cough, shortness of breath, or other COVID-19 symptoms recognized by the U.S. Centers for Disease Control and Prevention and is seeking a medical diagnosis;
- Care for Others-when an employee is caring for an individual who is subject to a quarantine or isolation order or whose health care provider has advised the individual to self-quarantine due to concerns related to COVID-19; and
- School/Childcare Closure-when the employee is caring for a son or daughter because the school or childcare provider has been closed or the childcare provider is unavailable due to COVID-19 precautions.
The amount an employer must pay an employee for sick leave under HFWA varies depending on the reason for the use of sick leave. When an employee is quarantined or takes leave due to his or her own health conditions, the employer must pay the employee at the employee's average regular rate. This amount, however, is capped at $511 per day ($5,110 in the aggregate). When an employee takes leave to care for others or because of childcare obligations, employers must provide paid sick leave at two-thirds of the employee's average regular rate, and such payment is capped at $200 per day ($2,000 in the aggregate).
Notice Requirements
Employers must notify employees of their rights under HFWA. The easiest and best way to meet this requirement is to post the HFWA informational Department of Labor Poster in a conspicuous and accessible place in each establishment where employees work, and/or to provide the poster electronically to employees who are working virtually outside of a physical workspace. In addition to the English poster, such notice must be also provided in every language spoken by at least 5% of the employer's workforce; the Department also provides non-English versions of its poster here. Failing to provide the required notice may subject a business to up to a $100 civil fine for each individual violation.
No Retaliation
An employer cannot retaliate against an employee for exercising any rights established by HFWA. Examples of employer retaliation may include but are not necessarily limited to, termination, reduction in pay or hours, demotion, suspension, discipline, interference with an employee's complaint about an alleged HFWA violation or a Department investigation into such allegation, or issuing threats of any kind. Possible penalties for retaliation include civil fines, mandatory reinstatement, payment of back pay, payment of sick pay, or other legal remedies available to the Department.
Of note, an employer cannot take any action against an employee for an incorrect HFWA complaint or related incorrect information, provided that such employee's belief was reasonable and in good faith. For example, an employer may not deny sick pay to an employee who took leave based on experiencing Covid-19-like symptoms but later received a negative test result for Covid-19.
Documentation and Good Faith Mistakes
Although not mandatory, an employer may require an employee to provide certain documentation to substantiate that the requested sick leave is for a valid HFWA purpose. Such documentation may include a signed statement by the employee listing:
- the dates for which leave is requested;
- the qualifying reason for leave;
- a statement that remote work for such employee is impossible;
- the name of the health care provider who advised the employee (or family member) to quarantine, the name of the governmental authority issuing the quarantine order, or the name of the child requiring care, the name of the school or place of childcare that is unavailable, and a statement that no other suitable person is available to care for the child.
However, such documentation cannot be required in advance of the leave, only "as soon as practicable." Any health information provided to an employer by an employee must be kept confidential in a separate file.
Additional Considerations
An employer is not required to provide Covid-19 sick leave under HFWA if the employer's entire business is closed (whether permanently or temporarily) and all employees are furloughed or laid off. Additionally, while HFWA sick leave related to Covid-19 is in addition to any regular sick-leave policy an employer may have had in place prior to April 1, 2020, an employer does not have to provide more Covid-19 paid sick leave to an individual employee during the 2020 calendar year than is required under HFWA.
For example, a full-time employee who took one week (40 hours) of paid sick leave relating to Covid-19 in May 2020 would only be entitled to an additional 40 hours of paid sick leave under HFWA prior to December 31, 2020; however, if such employee was not paid during such employee's prior sick leave in May, such employee would still be entitled to take up to 80 hours of paid sick leave related to Covid-19.
Lastly, paid sick leave does not have to be paid out to a terminated employee after the date of termination, provided that such employee was not terminated in retaliation for attempting to take HFWA sick leave or that the employee took valid HFWA sick leave prior to termination but was not paid for such leave.
Our Takeaway
HFWA's Covid-19 sick leave requirements may put certain Colorado employers in a difficult place, especially Because of HFWA's considerable deference to employees, such as the good-faith belief safe harbor and the limited documentation that an employer can request in an effort to ensure that the requested leave is proper, employees may seek to take unfair advantage of their ability to take time off due to HFWA.
Although an employer absolutely may impose consequences, including termination and refusal to pay sick leave, on an employee who is willfully dishonest and intentionally abuses paid sick leave, compiling sufficient evidence to establish such dishonesty or abuse will likely be very difficult except in the most flagrant of cases (for example where an employer obtains emails, text messages, or social media posts in which an employee brags about abusing his or her paid sick leave). Further, even if a consequence imposed by an employer is ultimately upheld as valid, it is possible that the time and expense of defending against a retaliation claim by an employee could be worse than merely paying the sick leave requested.
Currently, HFWA's Covid-19 sick pay requirements are only in effect until December 31, 2020, though both state and/or federal action could potentially extend and/or alter Covid-19-related sick leave requirements for employers. Beginning January 1, 2021, HFWA will impose sick leave requirements on Colorado employers with at least 16 employees, and beginning January 1, 2022, HFWA will impose sick leave requirements on all Colorado employers, regardless of size, though an in-depth analysis of HFWA's impacts in 2021 and 2022 is beyond the scope of this article.
If you are seeking additional information about the Covid-19 sick leave requirements under HFWA, the Department of Labor has issued a Formal Opinion that highlights most of the relevant provisions of the law. However, because HFWA compliance is a new and nuanced area of the law that may require a case-by-case analysis, we encourage you to contact us if you have any concerns about whether your business or your employer is HFWA compliant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
