In an extraordinary legislative session interrupted by the COVID-19 pandemic—which led to a Colorado Supreme Court ruling that lawmakers could 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 14, Governor Jared Polis signed into law the Colorado Healthy Families and Workplaces Act (HFWA), which goes into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many employees they employ) on January 1, 2022.
Details on the new law and other legislative developments are discussed below.
Paid Sick Leave for All Colorado Employees
The HFWA requires that nearly all employees working for public and private employers in Colorado must begin accruing at least 1 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 limit.
The requirement goes into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many employees they employ) on January 1, 2022.
The HFWA 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 individual’s place of business or a school or childcare facility (if the employee needs to care for a child).
The HFWA applies to hourly, salaried, exempt, nonexempt, and other employees, mandates only limited notice and documentation requirements for sick leave requests, prohibits retaliation against employees requesting the leave (including any reduction in pay or discipline), requires posted notices, imposes record-keeping requirements (including specific confidentiality restrictions), and provides only limited carveouts when 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 doesn’t require you to pay out accrued, unused sick leave hours upon separation from employment.
The Act imposes additional paid sick leave requirements for COVID-19 and other public health emergencies. As for the pandemic, it requires all covered employers in Colorado to comply with the federal Families First Coronavirus Response Act (FFCRA)—which requires paid sick leave or expanded family and medical leave for specified reasons related to the outbreak—through the end of 2020, even if they wouldn’t otherwise be subject to the Act based on their size.
(The FFRCA generally applies only to employers with fewer than 500 employees and contains certain exemptions for businesses with fewer than 50 employees, but none of the size limits matters under the new Colorado law.)
The HFWA also requires that when other public health emergencies are declared, you must supplement employees’ accrued paid sick leave, as necessary, to ensure they can take approximately 2 weeks of paid leave for additional reasons, 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—the HFWA provides robust protections and remedies for whistleblowers raising health or safety concerns relating to public health emergencies, such as COVID-19.
The HFWA 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.
The coverage includes complaints to government agencies or the public. It doesn’t include complaints the worker knows to be false or that are made recklessly without regard for 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 work site where the PPE (1) provides a higher level of protection than afforded by the employer or other entity covered by the bill, (2) is recommended by the applicable public health agencies, and (3) doesn’t prevent the workers from performing their jobs or fulfilling their duties.
The Act requires posted notices of workers’ rights under the bill and provides robust remedies that can 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
A bill amending Colorado’s unemployment insurance (UI) statutes has expanded the reasons for which workers may receive jobless benefits, including when an individual separates from employment because:
- The employer required him to work in an environment that doesn’t comply with certain governmental guidelines for disease mitigation and workplace safety;
- Certain governmental orders have closed or modified the business;
- The individual 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 for the same reasons; or
- The employee has separated from employment because she is immunocompromised and more susceptible to illness or disease during a public health emergency.
The bill also reduces (until September 1, 2022) cuts in UI benefits when an individual receives outside income in addition to the benefits.
Other Employment Bills Passed
Also passed during the 2020 legislative session was a bill—signed into law by Governor Polis before the pandemic hit—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.
Protected hairstyles were defined to include braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.
Another bill also already signed into law significantly expanded state employees’ collective bargaining rights.
Pending Paid Family and Medical Leave Ballot Initiative
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 have filed it as a ballot initiative. If supporters get enough signatures by August 3, 2020, it could be on the November 3 ballot.
If the measure gets on the ballot and is approved by voters, it would 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 4 additional weeks if they have certain complications relating to pregnancy or childbirth.
The leave would 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 the premiums divided evenly between payroll deductions and employer contributions. Businesses with fewer than 10 employees would be exempt from the matching premium payments.
Brad Williams is of counsel with Holland & Hart, LLP’s labor and employment practice group in Denver, Colorado. You can reach him at bjwilliams@hollandhart.com.
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