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02 Jul

June 2020 Colorado HR Legal Updates

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Colorado Passes Law Requiring Employers to Provide Three Types of Paid Sick Leave

What happened?
The Colorado Senate has passed a bill that will create three mandatory types of sick leave, COVID-19 Emergency Paid Sick Leave (CO-EPSL), Paid Sick and Safe Time (PSST), and Public Health Emergency Paid Sick Leave (PHEL).

What are the details?
The Colorado Senate has passed SB20-205, the Healthy Families and Workplaces Act (HFWA). The bill was signed by the president of the Senate on June 22, 2020, and now needs to be signed by the governor to take effect. The bill will create three distinct sick paid leaves. The paid leaves will take effect at varying times. The sick leaves will be broken down individually below:

It is not clear right now what exemptions may exist when a collective bargaining relationship exists between the employer and employees.

It is not clear how the federally required leave will interact with the also required Health Emergency Leave with Pay rules that already exist in Colorado. 

Details related to the leave provided by the FFCRA can be found here.

Note: the CO-EPSL is the same amount of sick leave provided by the FFCRA. It is only different in that it will be required of all Colorado employers.

PSST
PSST will first apply only to employers with 16 or more employees starting January 1st, 2021, then be applicable to all employers January 1st, 2022. Employees will start accruing 1 hour of PSST for every 30 hours worked, up to a maximum of 48 hours per year. Employers may frontload the 48 hours instead of accruing per hour worked. It has not been mentioned if this relieves employers of the need to carryover balances like it does for other states. Therefore, every employee will be allowed to carryover their unused balance, up to 48 hours of PSST, to the following plan year. Employers with existing policies that already meet or exceed the 48 hours of PSST and the 80 hours provided (assuming the employee is working at least 80 hours every two weeks) will not have to create a new sick plan policy. Unlike other mandatory sick leave programs, PSST has no usage waiting period. Employees may use PSST as they accrue it.

To read more about PSST, including when employee’s may use it, click here.

PHEL
PHEL is only a supplemental paid sick leave. It will only be applicable in the event of a public health emergency. A public health emergency is defined by the HFWA as:

  • an act of bioterrorism, pandemic influenza, or an epidemic caused by a novel and highly fatal infectious act, for which: (1) a disaster emergency is declared by the governor; or (2) an emergency is declared by a federal, state, or local public health agency;
    • a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

Additionally, the employee can use their PHEL up to four weeks after the official termination or suspension of the public health emergency. The amount of supplemental leave provided varies by the amount of time worked by the employee. The amounts are as follows:

  • For employees who normally work 40 hours or more per week: At least 80 hours.
  • For employees who normally work fewer than 40 hours in a week: At least the greater of either the amount of time the employee is scheduled to work in a 14-day period or the amount of time the employee actually works during an average 14-day period.

It is not currently clear when exactly PHEL is supposed to be offered by employers. For more details on PHEL click here.

The Senate bill itself is available here.

What do employers need to do?
Employers with employees in Colorado should closely monitor the governor’s website, as it will be effective immediately once signed. Paid sick leave policies should be changed to accommodate the new emergency leaves and PSST that will start at the beginning of 2021.

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Summary of State Laws (Q1 & Q2 2020)

Overtime and Minimum Pay
Effective March 16, 2020, the Colorado Overtime and Minimum Pay Standards (COMPS) Order #36, replacing Minimum Wage Order #35, contains wage and hour changes to include:

  • An increase in salary thresholds for exempt employees
  • Expanded coverage to nearly all employees
  • Modified rest period requirements
  • Expanded posting requirements that include adding a copy of the COMPS Order or poster to a handbook or policy for those employers that distribute a handbook or policies to their workers

For additional information regarding this Order, please refer to this firm’s legal update on this Colorado COMPS Order.

In addition, temporary amendments to the COMPS Order (set to expire July 14, 2020, but proposed to become permanent) include:

  • Analysis of joint employment under Colorado wage and hour law under the versions of the federal Fair Labor Standards Act (FLSA) and applicable FLSA regulations that were in effect as of May 16, 2019 rather than the current FLSA regulations.
  • Reduction of information required in the earnings statements provided to employees each pay period, specifically eliminating an employee’s address, occupation, date of hire, date of birth (if the employee is under the age of 18), and daily record of all hours worked.
  • Requirement that employers provide employees access to required records of their daily hours and a statement of their occupation through either each pay period’s earnings statements (previously mandatory, but now optional), online access to the information (if the employer knows that the employee has an email address) or annually by each January 31, as well as upon a request that an employee can make once per year.

Hair Discrimination
Effective September 14, 2020, an amendment to the Colorado Anti-Discrimination Act provides that race discrimination includes hair texture, hair type, and protective hairstyles such as braids, locs, twists, tight

coils or curls, cornrows, bantu knots, afros, and headwraps that are commonly or historically associated with race.

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