Since the onset of the pandemic, many states and localities have passed COVID-19 supplemental paid sick leave laws requiring employers to provide leave to employees for COVID-19-related reasons. California and Colorado have gone beyond many other states by adding to the required amount of sick time. These laws present unique administrative compliance challenges and financial burdens on employers who must prepare for employees’ additional paid COVID-19-related absences. Even employers with no employees in California and Colorado should be mindful, however, because sick leave developments in those states could foreshadow developments in other states.
CALIFORNIA
California’s new COVID-19 Supplemental Sick Leave Law is noteworthy because it creates additional, i.e. supplemental, sick leave obligations, much like the Families First Coronavirus Response Act (“FFCRA”) did on a national level. These obligations may not be satisfied using preexisting paid time off or vacation time. Unlike the FFCRA, however, the new law has no mechanism through which companies can seek reimbursement for the cost of the leave. The law passed on February 11, 2022, and will remain effective through September 30, 2022. The California law requires covered employers to provide up to 80 hours of COVID-19 supplemental paid sick leave (capped at $511 per day with an aggregate of $5,110) to covered employees for qualified reasons upon an employee’s request. The law is retroactive to January 1, 2022.
- Which employers are covered?
The law applies to employers with 26 or more employees, regardless of the number of hours they worked or their geographic location. An employer with only a few employees in California will still be subject to the law as long as the company has at least 26 employees nationwide.
- Which employees are covered?
Covered employees are California-based employees who are unable to work or telework for any of the law’s enumerated, qualifying reasons.
- For what reasons can covered employees use COVID-19 Supplemental Sick Leave?
California’s law sets aside two buckets of sick leave—one for employees who test positive for COVID-19 and one for general COVID-19-related leave. The general COVID-19 category includes such instances as taking leave when an employee is experiencing COVID-19 symptoms that prevent the employee from working, caring for a family member experiencing symptoms, or getting a COVID-19 vaccine. For full-time employees, each bucket contains 40 hours of paid sick leave. Employers may require employees to provide proof for some, but not all, of the qualifying reasons. Covered employees may choose to withdraw sick leave from either bucket as long as they have a qualifying reason.
- How does the law apply retroactively?
Upon an employee’s request, covered employers must make retroactive payments to employees who used sick leave for any of the qualified purposes from January 1, 2022, to the date of the law’s adoption. Once an employee requests a retroactive payment, payment is due on the payday following the next full pay period.
- How should covered employers notify employees of the new sick leave requirements?
On February 18, 2022, the California Labor Commissioner provided a sample notice for covered employers. Typically, the notice must be distributed in person, but it may be distributed via email if employees do not frequently visit the workplace.
- Is there anything else covered employers should know?
Covered employers are now required to notify employees on each designated payday as to the amount of sick leave they have used. Employers who fail to comply with this provision may face penalties and civil liability.
COLORADO
The Colorado Healthy Families and Workplaces Act (HFWA) is significant because it imposes additional leave requirements for pandemic-related absences. It requires Colorado employers to provide employees with up to 80 hours of public health emergency sick leave (“PHE Sick Leave”) at the employees’ normal rate of pay during any federal, state, or local public health emergency. Although Colorado has lifted its state declaration of public health emergency for the COVID-19 pandemic, the U.S. Department of Health and Human Services (“HHS”) has not. Accordingly, Colorado employees are still entitled to PHE Sick Leave for the time being.
- Which employers are covered?
All employers in Colorado are required to provide PHE Sick Leave.
- Which employees are eligible?
All Colorado employees who request sick leave for one of the enumerated qualifying reasons are eligible to use PHE Sick Leave.
- For what reasons can eligible employees use PHE Sick Leave in Colorado?
An eligible employee may use PHE Sick Leave to: (a) isolate because the employee is diagnosed with a communicable disease (i.e., the disease that is the cause of the public health emergency) or care for a family member who is isolating because they are diagnosed with a communicable disease; (b) isolate because the employee is experiencing symptoms of a communicable disease or care for a family member who is isolating because they are experiencing symptoms of a communicable disease; (c) seek or obtain a medical diagnosis, care, or treatment if the employee or a family member is experiencing symptoms of a communicable illness that is the cause of a public health emergency. Significantly, employers cannot require employees who take PHE Sick Leave to provide verifying documentation.
- How much PHE Sick Leave do employees get?
Employees who work 40 hours per week are entitled to 80 hours of paid sick leave for the duration of the public health emergency. Employees who work fewer than 40 hours per week are entitled to sick leave equal to the average number of hours they worked in a 14-day period.
- Is there anything else that Colorado employers should know?
Under the HFWA, eligible employees are entitled to no more than a total of 80 hours of paid sick leave even if the public health emergency is extended, reinstated, or prolonged. As of January 1, 2022, the HFWA also requires all employers, regardless of their size, to provide at least one hour of non-PHE paid sick leave for every 30 hours worked up to 48 hours of sick leave. Unlike California’s law, Colorado law allows employers to run an employee’s PHE sick leave concurrently with other paid leave for PHE-related purposes and still satisfy the law’s requirements.
