By now, employers should be aware that Colorado’s Healthy Families and Workplace Act (“HFWA”) includes a provision requiring employers to provide up to eighty (80) hours of paid leave for employees affected by a Public Health Emergency (PHE). See C.R.S. § 8-13.3-405(1). Of course, at the time of its passage in 2020, this law was specifically meant to address employees affected by the Covid-19 pandemic. But on November 11, 2022, Governor Jared Polis issued a new executive order, D 2022 044, which expands the illnesses in the disaster declaration beyond Covid-19. Now, PHE leave can be used not just for Covid-19, but also flu, respiratory syncytial virus (“RSV”), and other respiratory illnesses. This expansion beyond Covid-19 doesn’t give employees an extra 80 hours for these newly added illnesses, it just means employees can use their 80 hours for a broader range of conditions.

When Employees Qualify for Public Health Emergency Leave

With this expansion of illnesses that qualify an employee for PHE leave, it is important for employers to remember that an employee does not need to be infected by a qualifying illness to be affected by it. The range of events that would allow an employee to qualify for PHE leave include: 

  1. To self-isolate and care for oneself because the employee is diagnosed with a communicable illness that is the cause of a public health emergency; 
  2. To self-isolate and care for oneself because the employee is experiencing symptoms of a communicable illness that is the cause of a public health emergency;
  3. To seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of a communicable illness that is the cause of a public health emergency;
  4. To seek preventive care concerning a communicable illness that is the cause of a public health emergency; or
  5. To care for a family member who:
    1. is self-isolating after being diagnosed with a communicable illness that is the cause of a public health emergency; 
    2. is self-isolating due to experiencing symptoms of a communicable illness that is the cause of a public health emergency; 
    3. needs medical diagnosis, care, or treatment if experiencing symptoms of a communicable illness that is the cause of a public health emergency; or 
    4. is seeking preventive care concerning a communicable illness that is the cause of a public health emergency. 

The Basics That Employers Should Know To Manage PHE Leave

  1. For employees who normally work forty (40) or more hours in a week, at least eighty (80) hours of PHE paid sick leave is required. See C.R.S. § 8-13.3-405(1)(a). For employees who normally work fewer than forty (40) hours in a week, at least the greater of either the amount of time the employee is scheduled to work in a fourteen-day period or the amount of time the employee actually works on average in a fourteen-day period is required. See C.R.S. § 8-13.3-405(1)(b). 
  2. PHE leave is not accrued sick leave. Pursuant to HFWA, as of the beginning in 2022, all Colorado employees earn at least one hour of paid sick leave for every thirty hours worked by the employee, up to 48 hours. Rather than keeping accrued sick leave and PHE leave completely separate though, an employer may count an employee’s unused HFWA accrued paid sick leave toward the required PHE paid sick leave as long as it is for a qualifying illness. See C.R.S. § 8-13.3-405(2)(a).
  3. An employer may not request documentation to prove that an employee qualifies for PHE leave. See C.R.S. § 8-13.3-405(4)(b). This is true even if an employer is applying unused HFWA accrued sick leave toward the PHE paid sick leave.
  4. Employees must notify their employer of the need for PHE paid sick leave as soon as practicable when the need is foreseeable. See C.R.S. § 8-13.3-405(4)(a).
  5. Employees are only eligible to receive the full amount of PHE paid sick leave once during the entirety of a public health emergency even if such public health emergency is amended, extended, restated, or prolonged. See C.R.S. § 8-13.3-405(4)(c). But this does not mean that employees may only request PHE leave once. For example, a full-time employee may request PHE leave multiple times before the employee utilizes the entire 80 hours allotted by statute.
  6. An employee may use PHE paid sick leave until four weeks after the official termination or suspension of the public health emergency. See C.R.S. § 8-13.3-405(2)(b). Based on the current emergency declarations, PHE emergency leave will continue at least into February 2023, but will continue longer if either the federal or the state PHE declaration is renewed further into 2023.

Conclusion

While Public health emergency leave is not meant to be forever, it is still here for now. I encourage any employers grumbling about the expansion of PHE to look for the light at the end of the tunnel. We have come a long way from lockdowns and mandatory work-from-home policies. Many employees are happy to be back at the office and out of their daily pajama routine. Providing PHE leave promotes a healthy work environment by deterring sick employees from coming to work and infecting other employees. The policy is helpful to those who are ill, but also, healthy employees that report to work each day appreciate that their good health might not be compromised because a sick colleague can stay home and get well. In the end, keeping the workplace healthy might make the company wealthy.