Colorado Explains Employer Duties in Public Health Emergency

March 8, 2021Alerts

Colorado recently provided guidance for employers about how the public health emergency supplement (PHE Supplement) works under Colorado’s new Healthy Families and Workplaces Act (HFWA) for employees hired after the declaration of the public health emergency (PHE) and for part-time employees.

On February 23, 2021, the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics revised the Wage Protection Rules (7 CCR 1103-7). The new rules are effective April 14, 2021 but can be relied upon now. We have written two previous alerts on this topic and will strive to provide updates and clarifications as regulations and guidance continue to develop.

Under the HFWA, upon the declaration of a PHE, employers must provide employees with a PHE Supplement to augment the sick and safe leave accrued or frontloaded before the declaration of a PHE.

Treatment of New Hires

The new rules make clear that new hires must be provided with the PHE Supplement. The prior rules stated that the PHE Supplement had to be available as of the date of the PHE declaration or January 1, 2021, whichever was later. The February 23 revisions add that the PHE Supplement also must be made available as of the employee’s first date of employment (if such date is later than the declaration) and January 1, 2021, making clear that employees hired during an active PHE must be provided with the PHE Supplement. Specifically, the rules now state that, on the day a PHE is declared, employers must immediately provide a PHE Supplement “usable as of the date of the declaration, January 1, 2021, or the employee’s first date of employment, whichever is later….”

Treatment of Part-Time Workers

The PHE Supplement is calculated differently for full-time and part-time employees. Upon declaration of a PHE, employees who normally work 40 or more hours in a week must have access to 80 hours of total paid leave. Employees who normally work less than 40 hours in a week essentially must have access to 14 days’ worth of work time as paid leave time.

Until now, it has been unclear how employers should calculate this leave time. The new rules make clear that the calculation of leave time is linked to an actual leave request. Specifically, under the new rules, employees who work less than 40 hours in a week must have access to paid leave hours that are at least the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request, or (b) actually worked in the 14-day period prior to the declaration of the PHE or the leave request, whichever is later.

Fox Rothschild's Labor & Employment attorneys are available to review workplace policies and job postings and advertisements to achieve compliance. Please contact Jessica D. Tsuda at [email protected] or 303.383.7671, or Renee J. Sheyko at [email protected] or 303.383.7673, or any member of our Denver Labor & Employment team.