Summary of SB 205 – Paid Medical Leave
Governor Polis signed SB 20-205 on July 14, 2020. The legislation creates the “Healthy Families and Workplaces Act,” which will be codified at C.R.S. §§ 8-13.3-401, et seq. This memorandum will summarize several key provisions of the Act.
Section 401 – Short Title
The title of the law is the Healthy Families and Workplaces Act.
Section 402 – Definitions
This section sets forth several definitions used in the Act. Some of the more important ones include:
“Employer” is defined very broadly and has the same meaning as set forth in the federal “Fair Labor Standards Act,” except the term also includes the state and its agencies or entities, counties, cities and counties, municipalities, school districts, and any political subdivision of the state.
The term “paid sick leave” (“PSL”) means time off from work that is compensated at the same hourly rate or salary and with the same benefits as the employee normally earns. “Same hourly rate or salary” does not include overtime, bonuses or holiday pay. For commission employees, the rate is no less than minimum wage.
“Retaliation” has its usual meaning of adverse employment action, but it also includes reporting or threatening to report the employee to immigration authorities.
Section 403 – General Rules of PSL
Effective Date: The Act is effective January 1, 2021.
Temporary Employer Size Cutoff: The Act applies to employers with more than 15 employees. But on January 1, 2020, the size limitation is repealed and the Act applies to all employers.
General Rule of the Statute.: Each employee earns one hour of PSL for every 30 hours worked. The statute does not distinguish between fulltime and part time employees.
Yearly Cap: An employee shall not earn nor use more than 48 hours of PSL in a year unless the employer agrees to more.
Exempt Employees: An exempt employee accrues PSL on the assumption that he or she works 40 hours per week unless the employee’s normal work week consists of fewer than 40 hours.
Carry Forward. An employee may carry forward up to 48 hours of PSL. However, even if an employee has more than 48 hours of accrued leave, an employee is not required to allow use of more than 48 hours in a single year.
Employer Policy. An employer may enact a policy that satisfies the requirements of the Act. The employer must ensure that the policy gives employees PSL sufficient to satisfy Section 405 for leave during an emergency. See below for the requirements of Section 405.
No Payout Required at Termination. The Act does not generally require employers to pay out accrued but unused PSL when the employee is terminated, resigns or retires.
Six Month Rule. If an employee separates from the employer and returns within six months, the employee is required to reinstate his or her accumulated PSL.
PSL Loans. An employer may loan PSL to an employee in advance of accrual.
Section 404 – Use of PSL
An employer is required to allow an employee to use PSL when:
(a) The employee (1) has a mental or physical illness that prevents him or her from working, (2) has an injury or health condition, (3) needs medical care or treatment; or (4) needs preventative medical care.
(b) The employee must care for a family member who (1) has a mental or physical illness, (2) has an injury or health condition, (3) needs medical care or treatment; or (4) needs preventative medical care.
(c) The employee or a family member has been a victim of domestic abuse, sexual assault, or harassment, and the leave is used to seek medical attention, obtain services from a victims services organization, obtain counseling, seek relocation, or seek legal services.
(d) Due to a public health emergency the employee’s place of business has been closed, or the employee’s child’s school or daycare has been closed.
An employee must use PSL in hourly increments.
The employer cannot require the employee to obtain a substitute worker.
If the PSL is foreseeable, the employee is required to make a good faith effort to give reasonable notice.
For PSL that lasts four or more consecutive days, the employer can require documentation that the PSL is for appropriate. It would seem that the negative implication is that for PSL that lasts only three consecutive days, the employer cannot require documentation.
Section 405 – Additional PSL During Public Health Emergency
During a public health emergency employers have additional PSL obligations. In addition to normal PSL (see Section 403), employers are required to supplement each employee’s PSL so the employee can take the following amounts of PSL:
(a) For employees who work 40 or more hours per week, 80 hours.
(b) For employees who work fewer than 40 hours per week, the greater of (1) the hours the employee is scheduled to work in a 14-day period; or (2) the amount the employee actually works in a 14-day period.
(c) An employer may count an employee’s unused normal PSL toward the supplemental PSL requirement.
An employee may use the supplemental PSL until four weeks after the emergency ends.
The employee may use the supplemental PSL for the following absences:
(a) The employee or a family member needs to self-isolate seek medical care, or seek preventative care.
(b) The government or the employer determines the presence of the employee (or a member of the employee’s family for whom the employee cares) at work jeopardizes others.
(c) The employee’s school or childcare facility closes.
(d) The employee cannot work because he or she is especially susceptible to the illness.
The employee is not required to document the need for this supplemental PSL.
Section 406 – PSL Related to COVID-19
Employers are required to comply with the federal Emergency Paid Sick Leave Act in the Families First Coronavirus Response Act. Through December 31, 2020 this mandate applies regardless of the employer’s size, and therefore the employer may be required to provide PSL to employees who might not otherwise be covered under the federal law.
Section 407 – Employee Rights Protected
An employee may file a complaint with the Department of Labor (“DOL”) for any violation of the Act, and the DOL is required to investigate such complaints.
An employer may not retaliate against an employee who has used PSL provided under the Act or filed a complaint.
An employer may not count an employee who uses PSL under the Act as absent for purposes of discipline.
The DOL may order that an employee (a) be reinstated to a job; (b) be paid lost pay.
Section 408 – Notice to Employees, Penalties for Noncompliance
Employers are require to give employees notice of their rights under the Act. The DOL is required to develop a poster for this purpose.
An employer who retaliates against an employee is subject to a fine of $100 per occurrence.
Section 409 – Employer Records
Employers are required to maintain records for each employee covering a two-year period.
Section 410 – Authority to Make Rules
The DOL is authorized to make administrative rules for enforcement of the Act.
Section 411 – Enforcement
In addition to an enforcement action by the DOL, an employee may bring suit in district court for an alleged violation of the Act. The statute of limitations is two years. The employee must file a complaint with the DOL before bringing any action.
Section 412 – Confidentiality of Employee Information
An employer may not require an employee to disclose the details of domestic violence, sexual assault, stalking, of health information. The employer must keep all information confidential.
Section 413 – Employers Encouraged to be More Generous
Employers are encouraged to adopt voluntarily more generous paid sick leave policies.
Section 414 – Other Legal Requirements Applicable
The Act sets a minimum PSL requirement. It does not preempt any other law or regulation that may provide for greater employee rights.
Section 415 – Collective Bargaining Agreements
The Act provides special rules for employers who are parties to collective bargaining agreements.
Section 416 – Employer Policies
An employer policy may not diminish an employee’s right to PSL under the Act.
Section 417 – Severability
The parts of the Act or severable.
Section 418 – Employer Authority
Nothing in the Act prohibits an employer from taking disciplinary action against an employee who takes PSL for reasons other than those specified in the Act.
NOTE: The foregoing is a summary only. If you have any questions about the applicability of the Act, you are advised to seek legal counsel.