Healthy Families and Workplaces Act (Paid Sick Leave) Overview & FAQ

This FAQ is intended to provide an overview of SB20-205 (eff. 1/1/21*, and later modified by SB23-017) and the resulting changes to employee leave eligibility and requirements under Colorado law at C.R.S. § 8-13.3-401 et seq.  This FAQ is for informational purposes only and does not constitute legal advice. Specific questions should be referred to the school district’s legal counsel.

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This FAQ is intended to provide an overview of SB20-205 (eff. 1/1/21*, and later modified by SB23-017) and the resulting changes to employee leave eligibility and requirements under Colorado law at C.R.S. § 8-13.3-401 et seq.  This FAQ is for informational purposes only and does not constitute legal advice. Specific questions should be referred to the school district’s legal counsel.

Background

SB20-205, which passed during the 2020 legislative session, created the Healthy Families and Workplaces Act (“HFWA”), which requires employers to provide paid sick leave to employees under various circumstances.[1] The law overhauls Colorado’s paid sick leave statutes and was, at least partially, drafted and enacted in response to the COVID-19 pandemic. 

Specifically, certain provisions of the HFWA expanded federal coronavirus time-off protections provided under the Families First Coronavirus Response Act (“FFCRA”). The FFCRA required certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19 and expired on December 31, 2020.[2]

However, despite the fact that the COVID-19 pandemic public health emergency has ended, portions of the HFWA regarding public health emergencies include long-term policy changes. 

Overview

Employers must provide up to 48 hours of paid sick leave per year

Beginning January 1, 2021, employers must provide paid sick leave, accrued at one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours (6 days), for the reasons specified in the law (i.e., care for the employee’s health, the employee’s family member, to handle victim-related matters, etc.).[3] The law applies to both hourly and salaried employees.[4]

Reasons for use of paid sick leave

Sick leave may be taken for the following reasons:

1. The employee’s personal mental or physical illness, injury, or health condition or the need to obtain medical care (including preventive care); [5]
2. The necessary care and attendance for the employee's family member who has a mental or physical illness, injury, or health condition or the need to obtain medical care (including preventive care);[6]
3. Grieving a family member, including attending funeral services or dealing with financial or legal matters;[7]
4. Seeking medical attention or related services if the employee or a member of the employee's family has been the victim of domestic abuse, sexual assault, or harassment;[8]
5. The district has been ordered to close by a public official due to a public health emergency;[9] or
6. The school or childcare provider for the employee's child has been ordered to close by a public official due to a public health emergency and the employee needs to be absent from work to care for their child.[10]
7. The employee needs to care for a family member whose school or place of work has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the closure of the family member’s school or place of care;[11] or
8. The employee needs to evacuate their place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the need to evacuate the employee’s residence.[12]
   
   

Paid sick leave taken under the HFWA cannot be counted as an “absence” that may lead to termination or other action against the employee, and an on-leave employee can’t be required to find a “replacement worker.”[13] 

Paid sick leave is not required if an entire business is completely closed unless a workplace is closed due to a public official’s order or temporary government quarantine or isolation order that triggers paid leave.[14] 

Expanded definition of “family member”

For sick leave purposes, the term "family member" means a member of the employee's immediate family (defined in statute as a person who is related by blood, marriage, civil union, or adoption), a child to whom the employee stands in loco parentis or a person who stood in loco parentis to the employee when the employee was a minor, or a person for whom the employee is responsible for providing or arranging health- or safety-related care.[15] 

Documentation

When possible, the employee must notify the district of the expected duration of the absence under the paid sick leave law.[16] The district may provide written procedures for employees to utilize, but may not deny paid sick leave for noncompliance with a policy.[17] For sick leave of four or more consecutive days (days the employee would’ve ordinarily worked, not just four calendar days), the district may require reasonable documentation that the leave is for an authorized purpose.[18] Reasonable documentation includes:

• For leave for health-related needs: If the employee received services (including remotely) from a provider for the health-related need, a document from the provider indicating a qualifying purpose under the HFWA will suffice. If the employee did not receive provider services, or cannot obtain a provider document in time or without added expense, the employee may provide their own writing that the leave was for a qualifying purpose.[19]
• For leave for safety/victim-related reasons (domestic abuse, sexual assault, harassment): The same rules for health-related needs apply, except that also, if applicable, an employee can provide a legal document indicating a safety need for the leave (such as a restraining order or police report).[20]
• Employers may not require that documents have a signature, be notarized, or be in any particular format. Documentation may be submitted by any reasonable method, including electronically.[21]

Employers may not require an employee to disclose details about health or safety information. Any such information that employers receive must be maintained on a separate form and in a separate file from other personnel information, treated as confidential medical records, and must not be disclosed except to the affected employee or with the express permission of the affected employee.[22] 

Documentation cannot be required to take leave but can be required as soon as the employee can provide it after returning, or separating from employment if they do not return, whichever is sooner.[23] 

If an employer reasonably deems an employee’s documentation deficient, without imposing a requirement of providing more documentation than is permitted, the employer must: (1) notify the employee within seven days of either receiving the documentation or the employee’s return to work (or separation) and (2) provide at least seven days to cure the deficiency after being notified.[24] 

District compliance with the HFWA

Employers that provide comparable paid leave to their employees and allow employees to use that leave as permitted under the HFWA are not required to provide additional paid sick leave to their employees.[25]Further, employees covered by a bargaining agreement would not be entitled to paid sick leave if the collective bargaining agreement expressly waives the requirements of the HFWA and provides an equivalent benefit to covered employees.[26]

Additional sick leave during a public health emergency

In addition to the paid sick leave generally accrued and discussed above, on the date a public health emergency is declared the district will supplement each employee's accrued paid sick leave as necessary to ensure that full-time employees who work 40 hours or more in a week may take at least 80 hours of paid sick leave and that employees who work fewer than 40 hours in a week may take at least the greater of the number of hours the employee is scheduled to work in a 14-day period or the average time the employee works in a 14-day period.[27] The district may count an employee's unused accrued paid sick leave toward the supplemental paid sick leave.[28]

The reasons for this supplemental sick leave are to allow employees to self-isolate, quarantine, or seek a medical diagnosis or care for such illness, to care for a family member who is self-isolating or seeking a medical diagnosis, to obtain preventive care for one's self or family member, or to care for a child whose school or daycare provider is unavailable because of the public health emergency.[29]  Documentation is not required to take paid sick leave during a public health emergency.[30]

From January 1, 2021 through June 8, 2023, all employers in the state were required to provide this supplemental leave for a range of needs related to COVID-19 and other illnesses.[31] However, employers are no longer required to provide this leave due to the public health emergency ending. 

Record-keeping and retention

The HFWA requires employers to retain records for each employee for a two-year period, documenting all of the following:

• Hours worked
• Paid sick leave accrued
• Paid sick leave used

Upon appropriate notice and at a mutually agreeable time, an employer must allow the division access to the records for purposes of monitoring compliance.[32]

Employers must also reinstate any unused paid sick leave to an employee who separates from employment and is rehired by the same employer within 6 months, subject to certain conditions; there is also a corresponding requirement for employers to retain records documenting, by employee, the hours worked, paid sick leave accrued, and paid sick leave used.[33]

FAQs

Q. Is the district responsible for paying for paid sick leave or the additional 80 hours of paid sick leave taken during a public health emergency?

A. Yes, the district, as the employer, is responsible for providing employees with paid sick leave as outlined in the HFWA.[34] However, the district may count an employee’s unused accrued paid sick leave towards the supplemental paid sick leave required. [35]

Q. Is the district required to provide any additional paid sick leave during an ongoing public health emergency once an employee has exhausted their 80 hours?

A. No, the public health emergency-related 80-hour leave supplement does not renew (on the first of the year or any other time). If the district has already provided all public health emergency-related leave an employee is entitled to, it need not provide that employee additional public health emergency leave for the duration of the public health emergency. However, employees would continue to have access to any unused, supplemental public health emergency leave they were provided on or after the date the PHE began.[36] 

Q. When can the district require documentation from employees who request to take paid sick leave?

A. For paid sick leave of four or more consecutive workdays, an employer may require reasonable documentation that the paid sick leave is for a covered purpose under the law.[37] However, per statute, documentation is not required to take paid sick leave during a public health emergency.[38] Please refer to the Documentation section above for more details. 

Q. Does the district have to make any changes if it already offers paid leave or already has a paid leave/PTO policy in place?

A. An employer with a PTO policy that provides an amount of leave that meets the paid sick time law's requirements, including accrual requirements, and that can be used for the same purposes and under the same conditions as this law—including the requirement that an employer ensures that employees have access to 80 hours of paid sick leave during a public health emergency—does not have to provide additional paid sick leave.[39]

Q. How does the HFWA apply to part-time employees or substitute teachers?

A. Part-time employees earn at least 1 hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours.[40] However, during a public health emergency, the district must ensure that part-time employees who normally work under 40 hours in a week are provided the greater of the number of hours the employee either (a) is scheduled for work or paid leave in the upcoming fourteen-day period, or (b) actually worked on average in the fourteen-day period prior to the declaration of the public health emergency.[41] 

Examples: An employee working 150 hours a month (35 hours a week) accrues just over 1 hour’s leave every week they work—which totals 5 hours a month, reaching the yearly 48-hour maximum after about 9 ½ months. 

An employee working 20 hours a week on a seasonal basis for 10 weeks accrues 1 hour’s leave every week and a half they work—which totals 6 hours during their 10-week work period. 

Per the Colorado Department of Labor and Employment, substitute teachers are likely employees under HFWA, which defines “employees” as: [A]ny person … performing labor or services for the benefit of an employer in which the employer may command when, where, and how much labor or services shall be performed. … [A]n individual primarily free from control and direction in the performance of the service, both under his or her contract for the performance of service and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the service performed is not an "employee".[42]

Accordingly, since districts may command, when, where, and how much work or services substitutes perform, substitutes may more likely be considered as “employees” rather than independent contractors and are therefore entitled to paid sick leave under the HFWA. However, if a substitute teacher is not an employee pursuant to the HFWA definition and meets the independent contractor exception in C.R.S. 8-4-101(5), then none of the HFWA requirements would apply.[43] Districts will need to consult with their legal counsel and HR administrators to make this determination.

If it is determined that substitute teachers are employees, the HFWA provides the same record-keeping requirements for all employees: 

"An employer shall retain records for each employee for a two-year period, documenting hours worked, paid sick leave accrued, and paid sick leave used. Upon appropriate notice and at a mutually agreeable time, the employer shall allow the division access to the records for purposes of monitoring compliance ...."[44]

Scenarios

Scenario 1: District A offers 48 hours of paid sick leave. Employee A uses 8 hours of sick leave for general purposes, then requests to take time off during a public health emergency. District A can count Employee A's unused 40 hours of paid sick leave towards the 80 hours for leave taken during a public health emergency, but must then supplement an additional 40 hours to ensure Employee A has 80 hours available.

Employee A does not have to take all 80 hours at once. If Employee A only needs to take 24 hours of leave during a public health emergency, Employer A can still count Employee A's unused 40 hours towards this purpose; this leaves Employee A with 16 hours of accrued unused sick leave and 56 hours remaining from the 80 hours for public health emergency leave (this is why tracking hours will be crucial).

Scenario 2: District B offers 80 hours of paid sick leave. Employee B doesn't use any of this sick leave but then requests to take time off during a public health emergency. District B can count Employee B's unused 80 hours of paid sick leave towards the 80 hours for leave taken during a public health emergency and would not be required to provide additional leave since Employee B has been provided with 80 hours of paid sick leave during a public health emergency. If Employee B exhausts the 80 hours during a public health emergency, that's it—Employee B would then revert to accruing paid sick leave at the provided rate.

Scenario 3: District C offers 120 hours of paid sick leave. Employee C doesn't use any of this sick leave but then requests to take time off during a public health emergency. District C can count 80 of Employee C's 120 unused hours towards the 80 hours for leave taken during a public health emergency. If Employee C exhausts the 80 hours during a public health emergency, that's it, but Employee C would still have 40 hours of paid sick leave remaining.

Could Employee C use the remaining 40 hours to take leave during a public health emergency? Maybe. District C is not required to provide Employee C with additional leave beyond the required 80 hours during a public health emergency, but Employee C may be able to use accrued leave beyond the 80 hours if it is available in accordance with other leave procedures District C has in place.

* Starting January 1, 2021, employers with 16 or more employees will be covered by the paid sick leave requirements. All employers in Colorado, excluding the federal government, were required to provide paid sick leave starting January 1, 2022.