November 29, 2022

Colorado’s Public Health Emergency Leave Now Covers COVID-19 and ‘Similar Respiratory Illnesses’

Colorado’s Healthy Families and Workplaces Act (the HFWA) requires employers provide up to two weeks of supplemental paid sick leave — often referred to as public health emergency leave (PHEL) — when a public health emergency is declared. As we previously described, this leave is awarded in addition to employees’ regular paid sick leave required by Colorado law. C.R.S. § 8-13.3-405. PHEL is provided per public health emergency and is to be used for reasons specifically connected to the public health emergency.

In March 2020, Colorado Gov. Jared Polis declared a COVID-19 public health emergency, which has since been renewed multiple times and continues to remain in effect. On November 11, 2022, Polis issued D 2022 044, Colorado COVID-19 and Other Respiratory Illnesses Disaster Recovery Order Amendment. The order expanded the previous public health order to cover not only COVID-19 but also RSV, influenza, and “other respiratory illnesses.” Employees with these conditions will now be eligible for PHEL until at least February 2023.

According to guidance issued by the Colorado Department of Labor and Employment (CDLE), “a key impact of this expansion may be that coverage remains even if testing confirms someone has flu or RSV rather than COVID” because employees with respiratory symptoms, like those common for the flu or RSV, were likely already covered. Importantly, the CDLE clarified and confirmed that the order’s expansion does not provide employees an additional 80 hours of PHEL, “it just means they can use their 80 hours for a broader range of conditions.”

“Respiratory illness” is not defined, so it is not clear what conditions qualify. As a result, PHEL could potentially cover leave needed for something as small as a chest cold. Employers also cannot require employees provide documentation to take PHEL or confirm the leave is for PHEL related reasons. C.R.S. § 8-13.3-405. In addition, employers cannot require employees to use their regular sick leave hours before using PHEL time. 7 CCR 1103-7:3.5.1(D).

As we approach the end of the year, it is important to remember that regular sick leave hours may need to be carried over and reset beginning in 2023 (unless a different calendar year has been established by written policy); however, PHEL time does not need to be reset or reissued. 7 CCR 1103-7:3.5.1. In addition, as the end of the year also brings cold and flu season, employers should make a conscious effort to ensure that employees are aware they can access this leave since an excellent way to keep the workplace running smoothly is to encourage employees to prioritize their health by taking sick leave if they need to. If employers have questions calculating leave required under the HFWA, they should contact a Colorado employment lawyer.

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