Colorado Healthy Families and Workplaces Act (HFWA) - effective July 15,2020

Watch our recent webinar for an overview of HFWA, as well as federal paid leave requirements per FFCRA:

 

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Through December 31, 2020, an employer must provide up to two weeks of paid leave (up to 80 paid hours) for the three categories of COVID-related needs listed below. Leave is at the employee's regular pay rate and hours, except that leave in category 3 (care for someone else) can be at 2/3 pay.

  • (1) having COVID-19 symptoms and seeking a medical diagnosis; or 
  • (2) being ordered by a government agent (federal, state, or local), or advised by a health provider, to quarantine or isolate due to a risk of COVID-19; or
  • (3) taking care of someone else due to COVID-19 precautions -- either someone in category (2), or a child whose school, place of care, or child care is closed or unavailable.
  • (4) The employee is experiencing any other substantially similar condition specified by the US Health and Human Services.

***This includes seasonal or temporary employees that are being covered by the company either by wages or benefits or both. This also includes workers who telework or work remotely.

Under the Families First Coronavirus Recovery Act (FFCRA), the Employee Paid Sick Leave Act (EPSLA) covers all areas where the employee’s health is being directly affected (as mentioned in items 1, 2, or 4). The Expanded FMLA provision covers instances where the employee is taking care of another individual or providing care to their child (as mentioned in item 3 above). The time period that the employee is entitled to differs based on the occurrence. Under the EPSLA, the employee is entitled to 2 weeks (up to 80 hours) of paid sick leave. Under the Expanded FMLA, the employee is entitled to up to 10 weeks of paid sick leave.

Public Health Emergency: In the event that a Public Health Emergency is declared, employees may take an additional 2 weeks of paid sick leave where sick leave may have already been exhausted. Any balance of this sick leave under the Public Health Emergency is valid for 4 weeks.

Tax Credits: Tax Credits are available and Employers are entitled to a fully refundable credit equal to the required paid sick leave. The tax credit also includes the employer’s share of Medicare tax imposed on the wages and its allocable cost of maintaining health insurance coverage for the employee during the sick leave period (qualified health plan expenses).

Requirement to Notify & Posting Duty: Colorado Health Families & Workplaces Act (HFWA) requires employers to notify employees of the new paid leave benefits and to display a copy of the informational poster "in a conspicuous and accessible" place in "each establishment" where employees work. This can be satisfied by posting & sharing a printed or PDF/electronic versions of the new Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Personal Protective Equipment. Spanish versions of the poster are available here as employers are also required to provide notices and posters in "any language that is the first language spoken by at least five percent" of its workforce.

Employee Rights & Protections Against Retaliation or Interference: Colorado Health Families & Workplaces Act (HFWA) also contains significant protections for employees. HFWA Paid Leave counts as "wages" thus under Colorado Law an employee denied paid leave may file a complaint with the Division of Labor for unpaid wages up to $7,500 or the employee can instead file a lawsuit in court if they prefer, but only after sending the employer a written demand and giving the employer at least 13 days to respond. 

Employees are also provided protections in HFWA against retaliations or interference with HFWA rights. From Colorado Interpretive Notice & Formal Opinion #6A: 

"Unlawful acts under HFWA include denying paid leave that an employee has a right to take, as well as any threat or adverse action (which includes firing, demoting, reducing hours, suspending, disciplining, etc.) that is done to retaliate against, or interfere with, either (C.R.S. 8-13.3-402(10), 8-13.3-407):

  • requesting or taking paid leave under HFWA, or attempting to exercise other HFWA rights;
  • informing another person about, or supporting their exercise of, their HFWA rights; or
  • filing a HFWA complaint, or cooperating in any investigation or other proceeding about HFWA rights.
HFWA disallows acting against employees for incorrect complaints or information, as long as the employee's belief was reasonable and in good faith. (C.R.S. 8-13.3-407(3).) Employers can impose consequences (firing or otherwise for misusing paid leave, dishonesty, or other leave-related misconduct. (C.R.S. 8-13.3-408.)
Example: An employer grants an employee request for paid leave for a COVID test, but then learns the employee went bowling and never really had that appointment. The employer then (A) denies the request for paid leave and (B) fires the employee for dishonest misuse of leave. The employee files a complaint claiming (A) denial of paid leave and (B) retaliation against HFWA rights. The employer did nothing wrong: (A) leave was not for an HFWA purpose, and (B) the firing was not retaliation because by taking leave with no HFWA purpose, the employee did not act reasonably or in good faith."

HFWA FAQs for Employers

We developed the following FAQs based on the state's Interpretive Notice & Formal Opinion #6A, as well as the Colorado Healthy Families & Workplaces Act (SB 20-205).

Are the 2020 provisions in Colorado HFWA similar to the federal Families First Coronavirus Response Act?

Yes, essentially the Colorado HFWA expands the leave requirements to cover all employers regardless of size whereas the FFCRA contained exemptions for larger employers with more than 500 employees. However, HFWA also contains significant protections for employees against employer retaliation or interference with HFWA rights.


What rate of pay should I use when calculating HFWA or FFCRA paid leave?

If leave is due to either scenario (1) or (2) above, then employees should be paid at their standard hourly rate/salary with the same benefits normally received. If leave is due to scenario (3), pay must be at least 2/3 the employee's standard hourly rate/salary and with the same benefits that the employee normally earns. Overtime, bonus or holiday pay need not be used in determining the employee's standard rate of pay. Waitstaff and other tipped employees must be paid at least standard minimum wage of $12/hour.


How much leave should be paid to an employee who works fewer than 40 hours a week?

Employees working less than a full schedule will be eligible for paid leave based on prior 6-month average of their weekly hours worked. Paid leave for newly hired/rehired employees is based on their recent scheduled hours for a two-week period.


If an employer has an existing Paid Time Off (PTO) policy, would that satisfy the requirements of HFWA paid leave in 2020?

Employers with existing leave policies that allow paid time off for any purpose may be able to rely on their current policies to satisfy the requirements, so long as the current leave policies (a) provides as much time off as HFWA requires, and (b) for all conditions and situations that HFWA covers in 2020. However, employers relying on existing policies alone may find implementation difficult. Various situations may exist, such as employees with low current PTO balances due to accrual based policies or prior PTO time taken, which may make reliance on existing policies alone complicated -- at least in terms of the 2020 provisions which became effective with short notice on July 15, 2020.


Will payments made under the terms of the federal FFCRA program qualify as HFWA paid leave?

Yes, employers can offset the burden of emergency paid leave by taking advantage of the FFCRA tax credits.


Will additional paid leave be required even if an employee already received 80 hours of leave for an earlier COVID-19 related incident?

No. However, if you did not pay the employee at their full rate of pay previously, then you are required to make up the difference. For instance, if you previously paid an employee 2/3 their rate of pay under FFCRA, they would be due the remaining 1/3 pay to make up the difference. 

If your employee previously received an FFCRA leave payment, please reach out to your account manager so we can review the case with you and make sure you are taking full advantage of the credits while covering your obligations.


Which employers are excluded from the 2020 COVID-19 provisions of the Colorado Healthy Families & Workplaces Act? 

Essentially all Colorado employers are required to comply with the 2020 provisions of the act. Only federal government employers or those operating under a collective bargaining agreement that provides equal or more leave are excluded from HFWA. There are no exclusions from the 2020 provisions of the HFWA based on employer size or for those operating under a 501c status such as non-profits, trade associations or religious organizations.


How should employees notify their employers or request HFWA leave?

Employers should encourage employees who are requesting HFWA paid leave to stay isolated, but employers may ask employees to submit their request for leave via email or text message for documentation needs. Employers may wish to create a request form or questionnaire they could send to employees. Here is a sample request form designed by SHRM which employers can reference as a model.


What documentation can employers request to support an employee's paid leave related to experiencing COVID-19 symptoms or being ordered to quarantine?

Colorado HFWA and federal Emergency Paid Sick Leave Act allows employers to request documentation from an employee's medical provider detailing that they are seeking a diagnosis due to COVID-19 symptoms, or being instructed to quarantine or isolate. The documentation provided to the employer must include a signed statement with the employee’s name and the following information: (a) the date(s) for which leave is requested; (b) the qualifying reason for leave; (c) a statement that the employee is unable to work or telework because of the qualifying reason; and (d) the name of the health care provider who advised the employee (or family member) to quarantine or self-isolate, or the name of the government entity issuing the quarantine or isolation order.


What documentation can employers request to support a leave request related to caring for an individual experiencing COVID-19 symptoms, being ordered to quarantine or for a child related to a school/child care closure?

In this scenario, the documentation provided to the employer must include a signed statement with the employee’s name and the following information: (a) the date(s) for which leave is requested; (b) the name of the person requiring care; (c) the name of the school, place of care, or child care provider that is closed or unavailable; and (d) a statement that no other suitable person is available to care for the child during the leave period.


How should an employer handle an employee's emergency paid leave documentation?

Any health-related documentation received by employers must be kept confidential, in a separate file away from the employee's other HR files.


Must the employer have a copy of the documentation prior to granting paid sick leave?

No, the documentation is not required to take the paid sick leave, but it can be required as soon as the employee reasonably can provide it.


Are we required to notify employees about this new paid leave benefit?

Yes, HFWA requires employers to notify employees of the new paid leave benefits. This can be satisfied by sharing printed or PDF/electronic versions of the new Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Personal Protective Equipment. In addition, employers are required to provide notices and posters in "any language that is the first language spoken by at least five percent" of its workforce; Spanish versions of the poster are available here.


Is there an updated Colorado Labor Law poster as a result of this new act?

Yes, there is an additional Colorado Labor Law poster that covers the Healthy Families & Workplaces Act (HFWA), as well as the new Public Health Emergency Whistleblower Law (PHEW). You can download a copy from the state here and print/post in your workplace next to your current labor law posters. There is also a Spanish language version of the Colorado (HFWA) & (PHEW) poster.


How does the Colorado Healthy Families & Workplaces Act (HFWA) work with the Colorado Health Emergency Leave with Pay ("Colorado HELP") rules adopted in March at the start of the COVID-19 emergency declaration?

The Colorado HELP rules took effect March 11, 2020, and terminated on July 14, 2020. The Colorado Healthy Families & Workplaces Act (HFWA) replaced the prior executive order effective July 15, 2020 thru December 31, 2020.


Disclaimer: This information is provided as a self-help tool and does not constitute legal or financial advice. Laws, regulations and lending products are changing daily and decisions as to whether or how to use this information and/or what actions to take in response to the COVID19 Pandemic are solely those of the employer. The providers of this information disclaim any and all responsibility and liability for its accuracy, completeness or fitness for your particular business purposes.

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