Healthy Families and Workplaces Act – 2021 updates

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Last year, Colorado enacted the Healthy Families and Workplaces Act (HFWA), a three-prong statute which outlined new leave requirements in response to the coronavirus pandemic. First, the HFWA required employers to provide 80 hours of COVID-19 emergency paid sick leave until December 31, 2020.

Now 2021 has arrived, and the HFWA requires employers to provide two more types of leave for its employees ­­­­­­– 48 hours of paid sick and safe time (PSST) and 80 hours of supplemental public health emergency paid sick leave (PHEL). Employers that provide its employees with sick and paid time-off options likely will be unaffected by these new requirements. However, employers without those options in place should pay special attention to these new laws.

Here is what you need to know about these two provisions:

  1. Paid Sick and Safe Time (PSST)

Effective January 1, 2021, employers larger than 15 employees must provide up to 48 hours of sick leave to all its employees. Employers with fewer than 15 employees have until January 1, 2022 to provide this leave. An employee can take PSST for the following reasons:

  1. When an employee: has a mental or physical illness, injury, or health condition that prevents the employee from working; needs to obtain a medical diagnosis, care, or treatment; or needs to obtain preventative medical care.
  2. When an employee needs to care for a family member who: has a mental or physical illness, injury or health condition; needs to obtain a medical diagnosis, care, or treatment; needs to obtain preventative medical care.
  3. When either an employee or employee’s family member has been a victim of domestic abuse, sexual assault, or harassment and needs to: seek medical attention to recover from mental or physical illness, injury or health condition caused by the abuse, assault or harassment; obtain services from victim services; obtain mental health counselling; seek relocation due the abuse; or seek legal services.
  4. There is a public health emergency where a public official has closed the employee’s place of business or the employee’s child’s school or other place of care.

Employers may choose to have its employees immediately accrue these 48 hours or may require its employees to accrue one hour for each 30 hours worked. Why an employer may want to allow its employees to accrue these 48 hours immediately is discussed in Section 3 below. Additionally, an employee may carry up to 48 hours of PSST for the next year, but employers can limit an employee to taking only 48 hours of PSST time per year.

Employees are only required to make a good faith effort to provide advanced noticed of their intent to use this leave. However, an employer can require documentation to account for their PSST usage.

  1. Public Health Emergency Paid Sick Leave (PHEL)

While PSST covers a broad spectrum of health and family related concerns, the PHEL is available for reasons related to a public health emergency – namely the COVID-19 pandemic.

Effective January 1, 2021, the PHEL requires employers to allow employees to take up to 80 hours of leave until four weeks after a public health emergency ends. Employees can use this leave for any of the following reasons:

  1. self-isolating and care for oneself because the employee is diagnosed or has symptoms of a communicable illness that is the cause of a public health emergency;
  2. seeking a diagnosis, treatment, or care of such an illness;
  3. seeking preventative care concerning such an illness;
  4. unable to work due to a health condition that may increase susceptibility to or risk of such an illness; or
  5. caring for a child or other family in category (a)-(d), or whose school or childcare is unavailable due to the PHE.

Although this seems similar to the 2020 leave requirements, the Colorado Department of Labor released guidance that makes it clear this is a new supplement of up to 80 hours of leave. Additionally, unlike the PSST, all employers, regardless of size, must provide this leave to its employees.

It should be noted that up to 80 hours is available for employees who work at least 40 hours per week. If an employee works less than 40 hours a week, an employer must provide the greater of the two: (1) the time the employee is actually scheduled during the two-week period off; or (2) the average time actually worked in 14 days.

An employee is not required to provide documentation to use this leave.

  1. Questions regarding PSST, PHEL, and other time-off options:

A recurring question is whether the 80 hours required by the PHEL is in addition to whatever time off an employee has accrued 2021. To answer simply, starting on January 1, 2021, employers must immediately allow its employees to have access of up to 80 hours of PHEL for the above listed reasons. Employers only need to provide this once, so if an employee uses 80 hours of PHEL in 2021, they will not be entitled to any additional PHEL in 2022. However, employers can count any accrued PSST hours employees have or other accrued PTO to meet the PHEL qualifications.

For example, an employer can choose two options with the PSST:

  • Give its employees 48 hours of fully accrued PSST and supplement an additional 32 hours of PHEL to bring the total to 80 hours, all effective January 1, 2021.
  • Require its employees to accrue their 48 hours of PSST, but then must immediately provide its employees with up to 80 hours of PHEL on January 1, 2021.

Below are some examples of how this might look for an employer:

  1. Company A has more than 15 employees and has no sick leave or time-off policy. Company A must do one of the following:
    • Allow each employee to accrue up to 48 hours of PSST this year while also providing up to 80 hours of PHEL to its employees this year immediately.
    • Provide each employee with 48 hours of PSST immediately and then 32 hours of PHEL immediately.
  2. Company B has more than 15 employees and provides its employees 80 hours of PTO accrued immediately each year (which can be used for any reason). Company B does not need to provide anything additional.
  3. Company C has more than 15 employees, and provides its employees 80 hours of PTO, but it must be accrued before it can be used. Each employee starts the year with no PTO. Company C must do the following:
    • Immediately provide its employees with 80 hours of PHEL which can be used only for the above-listed reasons.
    • Make sure that its accrual schedule is at least one hour accrued for every 30 hours worked in order to comply with PSST
  4. Company D has more than 15 employees and provides its employees the option to rollover previous years’ accrued PTO. Jason works at Company D and has rolled over 40 hours of his PTO from 2020. Company D must do the following:
    • Provide Jason with an additional 40 hours of PHEL effective immediately.
    • Make sure that its accrual schedule is at least one hour accrued for every 30 hours worked in order to comply with PSST.
  5. Company E has fewer than 15 employees and does not have any sick or time-off policy. Company E must do the following:
    • Immediately provide its employees with 80 hours of PHEL which can be used only for the above-listed reasons.
    • Starting January 1, 2022, provides its employees with 48 hours of PSST.
  1. Others Notes of Interest:

Employers must give written notice to all its employees of the provisions of the HFWA, including the amounts of time to which the employees are entitled to, the terms they can use that time, that the employer cannot retaliate against employees for using this time, and that employees have a right to file a complaint or bring civil action if denied these entitlements by the employer or if the employer retaliates.

Finally, employers must keep records of the hours employees worked, their PSST accrued and used for each employee for two years.

 

 

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