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24 Mar

March 2021 Colorado HR Legal Updates

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Colorado Provides Clarity on Paid Sick Leave Obligations for New Hires

Update Applicable to:
All Employers operating in Colorado.

What happened?
On February 23, 2021, the Colorado Department of Labor and Employment (“CDLE” or the “Division”) issued revisions to the Wage Protection Rules, 7 CCR 1103-7, relating to Colorado employers’ paid sick leave obligations under the Healthy Families and Workplaces Act (“HFWA”).

What are the details?
The HFWA requires Colorado employers to provide at least 48 hours of paid sick and safe leave (“PSSL”) each year on either an accrual basis based on hours worked or frontloaded annually. The new rules do not in any way alter this requirement.

In addition to this requirement, though, the law also requires all Colorado employers to provide employees access to up to 80-hours of public health emergency leave (“PHEL”) upon the declaration of a public health emergency by federal, state, or local authorities. In its last iteration of the Wage Protection Rules, the CDLE confirmed that the current COVID-19 public health emergency triggers the requirement to provide PHEL. There remained several ambiguities in the text of the rules, however, particularly concerning how much PHEL new hires or part-time employees are entitled under the law. While some ambiguities remain, the CDLE clarified some issues for employers.

First, the rules make clear that the amount of PHEL to which part-time employees are entitled is tied to when the employee requests PHEL. Full-time employees (employees who work at least 40-hours per week) are entitled to 80-hours of PHEL under the law, but it was previously unclear what amount of PHEL employers needed to provide to part-time employees. The statute’s text and the prior version of the rules provided that such employees were entitled to leave equal to the amount they work in a 14-days, but it was unclear to which 14-days this language referred. The rules now provide that part-time employees receive PHEL in “the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-days after the leave request, or (b) actually worked in the 14-days prior to the declaration of the public health emergency or the leave request, whichever is later.”

Having the amount of PHEL part-time employees receive tied to when they request PHEL makes compliance less challenging and fosters administrative ease for employers. By pegging the calculation to an employee’s “live” need for leave, the calculation produces a result that represents the employee’s current working situation, unlike, for example, what the employee might have been working months ago. Importantly, by tying the calculation to an actual need to use leave, employers can reduce the time staff must spend calculating leave that might never be used and instead can more effectively use their time addressing critical business needs during a public health emergency and assisting employees with their actual needs.

The second change makes clear that employees who are hired during a public health emergency are entitled to PHEL. A plain reading of the prior version of the rules—which tied PHEL entitlement to the number of hours an employee worked before the declaration of a public health emergency, or 14-days before or after January 1, 2021—would have excluded employees hired on or after January 15, 2021 from being eligible for PHEL. Thus, the CDLE’s revised language makes clear that all employees are entitled to PHEL regardless of their date of hire because PHEL eligibility is linked to when the employee requests leave.

You can read more about the rule revisions here.  

What do employers need to do?
Employers operating within Colorado should review the above changes to the existing PHEL rules and determine if any changes need to be made to workplace policies.


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