Colorado Paid Sick Leave & COVID Leave Updates

HFWA Background

Covered Reasons: Colorado’s HFWA, first effective on January 1, 2021^[1], requires employers of any size or industry with employees working in Colorado^[2] to provide paid sick leave to employees for the following covered reasons:

1. An employee’s need to diagnose or treat a mental or physical illness, injury, health condition, or an employee’s need for preventive care;
2. An employee’s need to provide care for a family member^[3] for the same reasons as detailed in #1 above;
3. An absence due to domestic abuse, sexual assault, or harassment of the employee or employee's family member, as long as the absence is to:
   • Seek medical attention to recover from a mental or physical illness, injury, or health condition caused by the domestic abuse, sexual assault, or harassment;
   • Obtain services from a victim services organization;
   • Obtain mental health or other counseling;
   • Seek relocation or take steps due to domestic abuse, sexual assault, or harassment; or
   • Seek legal services, including preparation for or participation in a civil or criminal proceeding relating to or resulting from the domestic abuse, sexual assault, or harassment;
4. Due to a public health emergency, a public official has ordered closure of:
   • the employee's place of business; or
   • the school or place of care of the employee's child and the employee needs to be absent from work to care for the employee's child.

Accrual & Frontloading: Employees accrue HFWA at the rate of one hour for every 30 hours worked, up to a maximum of 48 hours in a calendar year, unless the employer selects a higher limit. Exempt employees are deemed to work 40 hours per week unless their regular workweek is less than 40 hours, in which case HFWA accrues based on their normal workweek.

Employees begin accruing HFWA time upon their date of hire and may use their HFWA time as soon as it is accrued. Employers may advance HFWA time to an employee before being accrued.

HFWA time may be taken in one-hour increments unless an employer’s policies permit leave to be taken in smaller increments.

Employers may choose to frontload 48 hours of HFWA time to employees at the beginning of the year as an alternative to HFWA accrual.

Rate of Pay & Carry-over: A covered employer must pay the regular rate of pay (excluding overtime, bonuses, or holiday pay) to employees using HFWA, but not less than the applicable minimum wage.

Employers may permit employees to carry over accrued, unused HFWA time into the following year up to a maximum of 48 hours, unless an employer agrees to a higher amount.

Employee Documentation: Employers may require an employee to provide reasonable documentation for absences of four or more consecutive days.

All HFWA-related documentation received by an employer must be kept confidential and only disclosed with the employee’s permission. All health and safety information related to an employee’s use of HFWA time must be kept confidential and separate from employment/personnel files.

Termination of Employment & Rehires: Employers are not required to pay out accrued, unused HFWA time to employees upon termination of employment.

If a terminated employee is rehired within six months by the same employer, then previously accrued, unused HFWA time must be reinstated and available for use at the time of rehire.

Existing Leave Policies: Employers with existing paid leave policies or collective bargaining agreements that meet or exceed HFWA requirements under the same terms and conditions are not required to provide additional paid time off.

Other Employer Requirements:

1. Workplace Poster: Employers must post a HFWA workplace poster, detailing employee rights and protections, in a conspicuous and accessible worksite location. Click here for this model workplace poster in other languages^[4].
2. Recordkeeping: Employers are required to maintain HFWS records documenting hours worked and HFWA time accrued and used for two years.
3. Retaliation Prohibited: Employers are prohibited from retaliating or taking any adverse action against employees for requesting or using their HFWA time. Employers may not require employees to search for or find replacement workers to cover for them while taking HFWA time.

End of CO COVID PHE Leave Requirement

Colorado’s COVID PHE leave requirement ended on June 8, 2023, four weeks after the federal COVID-19 Public Health Emergency and National Emergency ended (on May 11, 2023). Click here for a Risk Strategies article detailing the federal COVID emergency declarations wind down guidance.

The CO COVID PHE required all Colorado employers, regardless of size and industry, to provide employees with two weeks of paid leave (80 hours if full-time, less if part-time) for COVID-related needs at the same rate of pay the employee earned during time worked. Employees were eligible for one bank of 80 hours of CO COVID PHE leave.

CO COVID PHE leave was required to be provided in addition to any HFWA time that an employee in Colorado was entitled to.

The need for CO COVID PHE leave included the following:

• Symptoms of COVID, such as fever or chills, cough, fatigue, muscle or body aches, headache, sore throat, congestion, or runny nose
• Quarantining or isolating due to exposure
• Testing for COVID
• Vaccination and its side effects
• Inability to work due to health conditions that may increase susceptibility or risk of COVID
• Needs to care for family (illness, school closure, etc.).

Employer Next Steps

As the August 7, 2023 effective date for these additional HFWA covered reasons approaches, employers with employees working in Colorado are advised to:

1. Consult with their employment and labor law counsel to update existing HFWA leave policies and employee handbooks.
2. Train managers and supervisors on these CO paid leave updates, including the end of the CO COVID PHE leave requirement.
3. Post an updated model workplace poster, expected to be published this summer, to reflect these additional HFWA covered reasons. Monitor the Colorado HFWA webpage for the updated poster and additional resources.

As the paid leave landscape around the country continues to rapidly change and evolve, Risk Strategies is committed to informing employers with the latest developments.

Contact us directly at benefits@risk-strategies.com.

[1] Initially, HFWA applied only to employers with 16 or more employees. As of January 1, 2022, HFWA applies to all employers with Colorado employees, regardless of number of employees.

[2] Certain railroad employees are exempt from HFWA.

[3] A family member is defined under HFWA broadly to include:

1. a person who is related by blood, marriage, civil union, or adoption,
2. a child to whom the employee stands in loco parentis or a person who stood in loco parentis to the employee when the employee was a minor, or
3. a person for whom the employee is responsible for providing or arranging health- or safety-related care.

[4] This model workplace poster is required to also be provided in the first language spoken by at least 5% of the employer's workforce.