Paid leave is coming to Colorado!
In response to the COVID-19 public health emergency, the Colorado General Assembly has mandated paid leave for Colorado employees. This new legislation, the “Healthy Families and Workplaces Act” (the “Act”), takes effect on January 1, 2021 and provides paid leave for medical absences, caregiving, and some crime victims’ services.
The Colorado Women’s Bar Association enthusiastically supported the bill’s passage because its measures offset the personal and financial hardships felt disproportionately by women: more often than their male counterparts, women act as caregivers for ill family members, both children and adults, and are victims of domestic violence, sexual assault, and harassment – which are all addressed by this Act.
Paid leave: 48 Hours Annually
Employees earn one paid-leave hour for every thirty hours worked, up to forty-eight hours earned annually. For full-time employees who are exempt from state overtime requirements (“exempt employees”), paid leave is calculated based on an assumed 40-hour work week. Part-time exempt employees’ paid leave accrual is based on the number of hours in their normal workweek. It is at the employer’s discretion whether to provide the full paid leave balance at the beginning of the year or as accrued.
Paid leave is used in increments of one hour or less, at the employer’s discretion. Unused accrued paid leave is preserved: up to forty-eight hours carry forward to the next year and an employee’s paid leave balance is reinstated when rehired within six months of separation. Employers are required to allow employees to use forty-eight hours of paid sick paid leave in a year but may adopt more generous paid leave policies than the minimums mandated by statute. Employers with fifteen or fewer employees are exempt from these paid leave provisions until January 1, 2022; all others must be compliant by January 1, 2021.
Reasons for Leave: Medical, Caregiving, and Victim
Employees may use their paid leave to care for themselves or family. Family is defined as being related by blood, marriage, civil union, or adoption; a person to whom the employee legally stands or stood in loco parentis, "in the place of a parent;" or a person for whom the employee provides or arranges health or safety-related care. Paid leave is available for obtaining preventative care, a medical diagnosis, or treatment and where a mental or physical condition prevents the employee from working. Should any of those apply to a family member, the employee may take paid leave to care for that family member.
When a public health emergency causes a public official to order closure of the employee’s business or their child’s school or daycare, the employee may take paid leave.
An employee who is the victim of domestic abuse, sexual abuse, or harassment, or who is a caretaker for a family member who is such a victim, is entitled to take paid leave for counseling or medical attention to recover from mental or physical conditions caused by the abuse, assault, or harassment. They may also take paid leave for any of the following where related to the abuse, assault, or harassment: relocation, obtaining victim services, seeking legal services, and participating in legal proceedings.
Public Health Crisis: Two Weeks Paid Leave
Additional paid leave becomes available when a public health emergency is declared. That additional paid leave may be used until four weeks after the official termination or suspension of said emergency.
One time during the declared emergency, full time (40+ hours/week) employees’ leave balances increase to 80 hours and part-time employees’ balances increase to equal their bi-weekly hours; specifically, the greater of their scheduled hours or average actual hours over fourteen days. Employers may count an employee’s unused accrued paid leave toward this public-health-crisis (“crisis”) paid leave allotment.
Crisis paid leave is available to employees who have been diagnosed with the crisis’ subject communicable illness (the “illness”), have symptoms thereof, are taking time off for preventative measures against the illness, have been exposed to the illness, or are caring for an illness-affected family member – including but not limited to children displaced by school and child care closings. Employees diagnosed with the illness may use crisis paid leave to self-isolate. When exhibiting symptoms, employees may use crisis paid leave for self-isolating, seeking diagnosis, and pursuing care or treatment. When an employee’s exposure to the illness or their symptoms thereof cause a public official, health authority, or the employer to determine that the employee’s presence on the job or in the community jeopardizes the health of others, that employee may use crisis paid leave to remove themselves from the workplace or community. If a family member meets any of the criteria described in this paragraph, an employee may take crisis paid leave to care for them. Additionally, an employee may use crisis paid leave where they have a health condition that may increase their susceptibility to the illness.
Rights and Obligations
An employer may not retaliate against an employee for requesting or using paid leave, filing a complaint under the Act, cooperating with an investigation, or informing others about their rights under the Act. An employer may not require an employee to find a replacement worker as a condition of using paid leave. Nor may an employer deny paid leave based on employee noncompliance with internal leave-notice procedures.
Where an employee takes paid leave for four or more consecutive work days, an employer may require reasonable documentation that the paid leave is for a purpose authorized under the Act. However, an employee is entitled to keep private the details of their or their family member’s health condition or experience of domestic violence sexual assault, or stalking; employers may not require disclosure of such details. Any health or safety information that the employer does collect must be treated as confidential and maintained separately from other personnel information.
Employers must notify employees of their rights under the Act by (a) supplying each employee with a written notice of the Act’s prohibition against retaliation, the terms for paid leave, and the amount of leave to which employees are entitled and (b) displaying a poster about the Act distributed by the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics (the “Division”).
Where their need for paid leave is foreseeable, employees must make a good-faith effort to provide advance notice and schedule their paid leave in a manner that does not unduly disrupt the employer’s operations. When possible, employees must inform their employers of the expected duration of their paid-leave absence.
Enforcement
The Division fines employers $100 per incidence of willful failure to notify employees of the Act, investigates claims that paid leave was denied in violation of the Act, and may investigate claims of retaliation. Where violations are found, the Division may order employee reinstatement and back-pay, either until reinstatement or for a reasonable period if reinstatement is not feasible. Prior to commencing any civil action, the employee must submit a complaint to the Division or make a written demand to the employer. The employer has fourteen days to respond after receiving the written demand or notice of complaint from the Division. The statute of limitations for filing claims in district court is two years. Legal and equitable relief are available, which may include reinstatement, promotion, pay increase, payment of lost wage rates, liquidated damages, and the employee's reasonable costs, including attorney fees.
Conclusion
The Healthy Families and Workplaces Act will facilitate health, peace of mind, and financial security. As such, it will be an important component of Colorado’s ongoing COVID-19 response and future prosperity.
Erin Croke is an associate with Heckenbach Suazo, LLP. She practices employment and family law with backgrounds in regulatory compliance and mortgage finance. She represents plaintiffs in employment cases spanning civil rights, unemployment insurance benefits, non-compete and severance agreements, and workplace safety. Her family law practice includes collaborative divorce, protection orders, support enforcement, and parenting plans.
Ms. Croke is a member of the Colorado Women’s Bar Association’s public policy committee with a special focus on family medical leave insurance.