Colorado’s new paid sick leave law

Earlier this year the Colorado legislature passed, and the governor signed, the Healthy Families and Workplaces Act (HFWA). Beginning January 1, 2021, employers in Colorado with more than 16 employees must begin providing earned paid sick leave. The law will apply to all Colorado employers with fewer than 16 employees starting January 1, 2022.

Benefit and Eligibility

Under HFWA, employees earn at least one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours in a year. Of course, employers are free to grant more than this, and if they already grant at least the minimum of 48 hours in a year, need not grant any additional time. Employers may also grant the leave in a block at the beginning of the year rather than accruing it over time. Employees will begin to accrue leave upon starting employment and may use it as it is accrued.

Uses of sick leave

The HFWA sets out the purposes for which an employee may use paid sick leave:

• The employee’s own physical or mental illness, condition, or injury
• The employee needs leave to see a doctor, receive care or treatment of a physical or mental illness or condition or receive preventive care
• Care for a family member with the above needs
• Related to sexual assault, domestic abuse, or harassment, the employee or a family member must
  • seek medical attention to recover from physical or mental illness or injury caused
  • obtain services from a victim services agency
  • obtain mental health or other counseling
  • seek legal services or prepare for a proceeding relating to the assault, abuse, or harassment
• In the event of a public health emergency, the employee’s workplace has been ordered closed, or the employee’s child’s school or daycare has been ordered closed and the employee must take care of his or her child

How is HFWA leave taken?

Similar to the federal Family and Medical Leave Act (FMLA), employees may take paid sick leave in increments of less than a full day, down to one-hour increments. Employees must make their request for paid sick leave by any means acceptable to their employer, including in writing, electronically, or orally, and include the expected length of the absence, if that is known. As with the FMLA, if the leave is foreseeable, the employee should provide advance notice to his or her employer to the extent possible.

There is no requirement under the HFWA that employers pay an employee for accrued but unused sick leave at the time the employee leaves employment. However, if an employee returns and is rehired within six months of having departed, the employer must restore any accrued sick leave that the employee had prior to leaving that employer.

What will employers have to do?

While the HFWA sick leave provisions do not take effect until January 1, 2021 (and not until 2022 for employers with fewer than 16 employees), there are steps the employers should begin thinking about now in order to be compliant in 2021, including:

• Employers must give employees written notice of their rights under HFWA, so they should work with counsel to develop compliant notices and provide training to managers on the law’s requirements.
• Employers should create and adopt a written policy that sets out notification procedures or add them to an existing employee handbook.
• Employers will be required to display a poster listing employees’ HFWA rights. The Colorado Dept. of Labor and Employment may provide a sample poster later this year, or they may be available from the commercial providers of labor/employment rights posters.
• Employers must maintain records that document for each employee the hours worked, paid sick leave accrued, and paid sick leave used. Employers must make these records available to the of Labor and Employment upon request.

The Dept. of Labor and Employment will likely issue additional regulations and guidance later in the year, which we will monitor. If you have additional questions, please contact Mark Spitz at Spitz Legal Counsel LLC, at mark@spitzlegalcounsel.com or by phone at 720.575.0440.