by Mark Wiletsky, Holland & Hart, LLP
Mark Wiletsky
In an extraordinary legislative session interrupted by the COVID-19 pandemic—which led to a Colorado Supreme Court ruling approving lawmakers’ right to reconvene after initially adjourning in late March 2020, despite a constitutional provision limiting regular sessions to “one hundred and twenty calendar days”—the Colorado General Assembly passed a number of important bills affecting employers. On July 15, 2020, Governor Jared Polis signed the Healthy Families and Workplaces Act (HFWA), which prescribes new paid sick leave obligations going into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many people they employ) on January 1, 2022. The HFWA also mandates that all covered employers in Colorado provide paid sick leave for certain COVID-19-related reasons immediately and through the end of 2020. Read on for more details about the HFWA and other important legislative developments.
Paid sick leave for all Colorado employees
Beginning on January 1, 2021, for employers with 16 or more employees, and beginning on January 1, 2022, for all other employers (regardless of how many people they employ), the HWFA requires that nearly all employees working for public and private employers in Colorado must begin accruing at least one hour of paid sick leave for every 30 hours worked, up to 48 hours total, with the balance carrying over from year to year, subject to the 48-hour limit. The Act permits the use of paid sick leave hours, as soon as they accrue, for numerous reasons, including:
- The employee’s own illness or need to care for family members;
- Leave associated with certain domestic abuse or sexual assault issues; or
- Ordered closures of the employee’s place of business or a school or childcare facility (if the employee needs to care for a child).
The HFWA applies to all hourly, salaried, exempt, nonexempt, and other employees, mandates only limited notice and documentation requirements for sick leave requests, prohibits retaliation against employees requesting leave (including any reduction in pay or discipline), requires posted notices, imposes record keeping requirements (including specific confidentiality restrictions), and provides only limited carveouts where preexisting employer policies or collective bargaining agreements already afford the same amount of paid sick leave and make it available under the same circumstances. The Act does not require employers to pay out accrued, unused sick leave hours upon separation from employment.
The Act also imposes additional paid sick leave requirements for COVID-19 and other public health emergencies. As to the COVID-19 pandemic, it requires all covered employers in Colorado to comply with the emergency paid sick leave requirements of the federal Families First Coronavirus Response Act (FFCRA)—which requires paid sick leave in relation to certain specified reasons related to the outbreak—through the end of 2020, and even if the employers would not otherwise be subject to the FFCRA based on their size. (The FFRCA generally applies only to employers with fewer than 500 employees and contains certain exemptions for employers with fewer than 50 employees; none of these size limitations apply under the new Colorado act.)
The HFWA also requires that when other public health emergencies are declared, employers must supplement em-ployees’ accrued paid sick leave, as necessary, to ensure they can take approximately two weeks of paid leave for additional reasons related to the public health emergency, including self-isolating, seeking care, caring for family members, or staying home in relation to various public orders or because of a particular susceptibility to the subject illness.
Whistleblower protections during public health emergencies
Going beyond the protections afforded by the federal Occupational Safety and Health Administration (OSHA)—under which retaliation complaints can take years to adjudicate through the federal bureaucracy—a new whistleblower protection act provides robust protections and remedies for whistleblowers raising health or safety concerns relating to public health emergencies such as COVID-19.
The new Act prohibits public and private employers, certain labor contractors, and entities contracting with five or more independent contractors, from discriminating, taking adverse action against, or retaliating against any worker who raises good faith reasonable concerns about violations of government health or safety rules—or other workplace threats to health or safety—related to public health emergencies. Covered protected acts include complaints to government agencies or the public. Protected acts do not include complaints the worker knows to be false or that are made recklessly without regard to their truth or falsity.
The Act also prohibits taking the same actions against any workers who wear their own personal protective equipment (PPE), such as masks, faceguards, or gloves, at any worksite where the PPE (1) provides a higher level of protection than the PPE afforded by the employer or other entity covered by the Act, (2) is recommended by the applicable public health agencies, and (3) does not prevent the workers from performing their jobs or fulfilling their duties.
The Act requires posted notices of workers’ rights under the Act and provides robust remedies that may be pursued through administrative actions, private lawsuits, or qui tam actions, in which aggrieved workers may sue on the state’s behalf. Depending on the venue in which the actions are filed, remedies can include significant fines, back- and front-pay, punitive damages, compensatory damages, and/or attorneys’ fees.
Expanded unemployment rights and benefits
An Act amending Colorado’s unemployment insurance (UI) statutes expands the qualifying reasons for which workers may receive UI benefits, including where individuals separate from employment because:
- The employer required the workers to work in an environment that does not comply with certain governmental guidelines for disease mitigation and workplace safety;
- Certain governmental orders have closed or modified the applicable business;
- The workers must care for a child enrolled in a school closed by a public health emergency or for a family or household member who is quarantined due to a public health emergency; or
- The workers have separated from employment because they are immunocompromised and more susceptible to illness or disease during a public health emergency.The Act also reduces, until September 1, 2022, cuts in UI benefits where individuals receive outside income in addition to their UI benefits.
Other employment bills passed
Also passed during the 2020 legislative session—and signed into law by Governor Polis before the pandemic hit—is a new bill expanding the definition of “race” within the context of employment discrimination and other statutes to include hair texture, hair type, or a hairstyle commonly or historically associated with race. The bill defines protected hairstyles to include braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.
Another new bill similarly signed into law before the pandemic hit significantly expands state employees’ collective bargaining rights.
Pending paid family and medical leave ballot measure
Finally, in addition to the paid sick leave required under the HFWA discussed above, Colorado Democrats are continuing their long-standing push for a paid family and medical leave law. Although the proposal failed during the recent legislative session, lawmakers filed it as a ballot initiative. The initiative received enough signatures by an August 3, 2020, deadline to be placed on the November 3, 2020, ballot.
If the measure is approved by voters in November, it will provide most Colorado workers with up to 12 weeks of partial pay and job security for various family- and medical-related absences from work, plus four additional weeks of paid leave if workers have certain complications relating to pregnancy or childbirth. This leave will be paid through a state-administered insurance program funded by premiums initially representing between 0.9% and 1.2% of each employee’s wages, with premium amounts divided evenly between payroll deductions and employer contributions. Businesses with fewer than 10 employees will be exempt from the matching premium payments.
