Colorado Clarifies Paid Sick Leave Requirements for 2021
Author: Marta Moakley, XpertHR Legal Editor
December 29, 2020
The Colorado Department of Labor and Employment (CDLE) has confirmed that the 2020 requirement of 80-hour COVID-related leave continues into 2021 for all Colorado employers. In addition to clarifications regarding paid COVID leave entitlements in 2021, the Interpretive Notice & Formal Opinion ("INFO") #6C summarizes required leave under various federal and Colorado laws, rules and provisions.
COVID Leave: 2020 Versus 2021
In July 2020, Colorado Governor Jared Polis signed the Healthy Families and Workplaces Act (HFWA) into law. Section 406 of the HFWA expanded existing federal 80-hour COVID leave entitlements through December 31, 2020. Specifically, the HFWA provided for 80-hour COVID leave (or proportionately fewer hours for part-time employees) to "each employee who is not covered" by federal law.
In addition, the law's Section 405 requires 80 hours of public health emergency leave (PHEL) beginning in 2021 if there is a public health emergency in effect. A COVID-19 public health emergency was declared on March 11, 2020, and is likely to be extended well into 2021. Therefore, as of January 1, 2021, a Colorado employer must supplement each employee with 80 hours of PHEL.
Covered employees have up to 80 hours of PHEL usable as of January 1, 2021, even if they had 80 hours of leave usable in 2020 under Colorado's FFCRA extension.
Under the HFWA, an employer need only make available 80 hours of PHEL during the pendency of the particular public health emergency. If the existing COVID-19 public health emergency continues into 2022, an employer need not supplement another 80 hours of PHEL for that calendar year.
Smaller employers must provide 80 hours of PHEL effective January 1, 2021.
Although the HFWA's general paid leave provision applies to all Colorado employers regardless of size effective January 1, 2022, the CDLE takes the position that employers with fewer than 16 employees must provide 80-hour COVID leave (PHEL) in 2021.
Interaction with Other Laws
Mandatory leave under the federal Families First Coronavirus Relief Act (FFCRA) expires on December 31, 2020. However, Colorado employers continue to be covered under the HFWA leave provisions.
With respect to future leave requirements, the Paid Family and Medical Leave Insurance Act (PFMLIA), passed by statewide vote in 2020, is projected to require paid leave as of 2024 under the existing implementation schedule.
The CDLE reminds employers that paid leave rights and responsibilities do not depend on tax credits or subsidies being available. Leave laws also contain protections against retaliation with related enforcement provisions.
Guidance and Regulations
The CDLE has issued guidance and a series of regulations regarding recently enacted employee protections.
In November, the CDLE issued regulations clarifying and implementing its paid sick leave requirements as well as retaliation protections under its Public Health Emergency Whistleblower (PHEW) law. The CDLE also issued regulations with respect to wage protection, equal pay and overtime and minimum pay standards.
While guidance such as INFO #6C is not binding law, employers should note that the resource represents CDLE's officially approved opinions and notices to employers, employees and other stakeholders as to how the enforcement agency applies and interprets various statutes and rules.