Employee Rights During COVID-19
There are many new rules to help keep employees safe at work during COVID-19. Review the guidance below to learn more about your rights and your employer's requirements.
To slow the spread of COVID-19 and make sure businesses are operating safely, all employees need paid sick leave to isolate and quarantine when ill or exposed to COVID-19.
Returning to Work & Paid Leave Requirements During a Public Health Emergency
- Paid Leave Requirements During a Public Health Emergency, Full FAQ, updated June 21
- Guidance for Returning to Work | En español
Healthy Families and Workplaces Act (HFWA)
The Colorado Healthy Families and Workplaces Act (SB20-205, July 14, 2020) requires most employers to provide accrued leave in addition to public health emergency leave. Employers with fewer than 16 employees are exempt from providing accrued leave until 2022, but employers of any size must provide public health emergency leave.
The HFWA requirements went into effect on Jan. 1, 2021 and are distinct from leave required in 2020 under the Federal Emergency Paid Sick Leave Act and the Colorado Health Emergency Leave with Pay (Colorado “HELP”) Rules. This requirement continues until four weeks after the expiration of any and all applicable public health declarations.
The United States Health and Human Services Secretary Xavier Becerra has formally extended the Public Health Emergency (PHE). This extension started July 20, 2021 and would end, unless extended again, on Oct. 18, 2021. The Biden administration has indicated they will keep extending the PHE throughout 2021 and there will be a 60-day notice period before any end to the PHE.
HFWA Requirements for Paid Leave
- All employers, regardless of size, must provide COVID-related leave to all employees.
- Employees normally working 40 or more hours in a week are entitled to 80 hours of paid leave, in addition to their regularly accrued leave hours
- Employees normally working less than 40 hours in a week are entitled to
- the number of hours the employee is scheduled to work in the fourteen-day period after the leave request, OR
- the number of hours the employee actually worked in the 14 days before the leave request or the declaration of the public health emergency (March 11, 2020), whichever is greater.
- The law applies to full- and part-time workers
- The law does not apply to gig workers, other independent contractors, or federal government employers
- Employees hired during a public health emergency are entitled to public health emergency leave.
- All employers must provide leave for an employee who:
- Needs time off to receive a COVID-19 vaccination or recover from vaccine side effects.
- Is required to isolate because they have been diagnosed with or have symptoms of COVID-19
- Is seeking a diagnosis, treatment, or care of such an illness
- including vaccination that prevents an employee from working due to a workday appointment and/or experiencing side effects afterwards.
- Is required by the employer or public health officials to isolate or quarantine due to exposure to someone with the illness, or symptoms of the illness
- Is unable to work due to a health condition that may increase susceptibility or risk of such an illness; or
- Is caring for a child or other family member who must quarantine or isolate, is getting the COVID-19 vaccine, or is recovering from side effects from the vaccination
- Is caring for a child or family member whose school, child care provider, or other care provider is unavailable, closed, or providing remote instruction due to the emergency.
- Employees are allowed to use public-health emergency related supplemental leave for any of the above-listed qualifying conditions before using accrued leave, if the reason for leave would qualify for both.
- Leave can be used all at once or can be divided among multiple qualifying events.
- Paid leave is not required if the business is completely closed.
- An employer is not allowed to take action (e.g. threat, discipline, demote etc.) against an employee for exercising their paid leave rights. They may not report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of a family member of an employee to a federal, state or local agency.
- Paid leave cannot be counted as an “absence” that may lead to firing or other action against the employee.
- Employers cannot require employees to get vaccinated outside work hours.
- Employers cannot require an employee to find a replacement worker to cover their absence in order to get paid for the leave.
- Employers cannot require notice for paid leave but, when possible, employees must try to provide notice of the need for paid leave and make a reasonable effort to schedule the leave that minimizes disruptions for the employer.
- An employer cannot require documentation for public health emergency leave. An employer can require return-to-work documentation if they believe in good faith that the employee was exposed to a contagious disease that may continue past the leave period.
- Any personal health or safety information that employers receive must be treated as confidential medical records, kept in separate files from other personnel documents, and may not be disclosed to others unless the employee consents in writing in advance.
- 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.
- Employers are NOT required to provide reimbursement of unused paid leave to an employee upon termination, resignation, retirement, or other separation from employment.
Paid leave is considered “wages” under Colorado law. An employee denied paid leave can:
- File a complaint for unpaid wages up to $7,500
- File a lawsuit in court if they have sent the employer a written demand and given the employer at least 14 days to respond.
- File a complaint for unlawful retaliation or interference with rights.
For more information, review the Colorado Department of Labor Standards and Statistics’ Interpretive Notice & Formal Opinion about the wage claim investigation process, visit the website, call 303-318-8441, or email email@example.com.
- Notify employees in writing of the right to take paid leave, in the amounts and for the purposes in HFWA, without retaliation, and
- Display an informational Division poster in any language that is the first language spoken by at least 5% of its workforce.
The American Rescue Plan Act of 2021 (ARP) allows small and midsize employers, and certain governmental employers, to claim refundable tax credits that reimburse them for the cost of providing paid sick and family leave to their employees due to COVID-19, including leave taken by employees to receive or recover from COVID-19 vaccinations.
- The ARP tax credits are available to eligible employers that pay sick and family leave for leave from April 1, 2021, through September 30, 2021. For more Information see the IRS’s fact sheet.
- An eligible employer is any business, including a tax-exempt organization, with fewer than 500 employees. Self-employed individuals are eligible for similar tax credits.
- Paid leave rights and responsibilities do not depend on tax credits or subsidies being available. All paid leave statutes and rules, federal or state, have required leave even if such credits or subsidies expire or are unavailable.
Other Paid Leave Requirements Beyond Public Health Emergency Paid Leave
Effective Jan. 1, 2021, employers with more than 16 employees must provide, at minimum, 1 hour of paid leave for every 30 hours worked by an employee, up to a minimum of 48 hours.
This leave can be used:
- For any mental or physical illness, injury, or health condition that prevents the employee from working;
- To get a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition;
- To get preventative medical care
- To care for a family member in those same situations
- To address certain needs if the employee or employee’s family member has been the victim of domestic abuse, sexual assault, or harassment
- Due to a public health emergency the employees place of business or the school or place of care of the employee’s child is ordered closed.
An employer may count an employee's unused accrued leave toward the supplemental public health emergency leave. Effective Jan. 1, 2022, all employers, regardless of size, must provide this accrued paid leave.
Longer-duration paid leave under the Paid Family and Medical Leave Insurance Act (PFMLIA) is not in effect yet. The PFMLIA became law upon passage of Proposition 118 by statewide vote in 2020. PFMLIA provides for up to 12 weeks of paid leave for a range of family and medical needs. However, PFMLIA mandates a specific planning, funding, and implementation schedule for that paid leave system. Under that schedule, PFMLIA provides paid leave only as of 2024.
Employers with employees who are high risk for becoming ill from COVID, live with, or care for an individual who is high risk:
- Cannot force an employees to physically go to work during the pandemic
- Must try to help high risk individuals continue to work at home
- Are encouraged to provide work adjustments, such as allowing work from home.
Report a concern if an employer is not meeting COVID-19 requirements:
- Call our us at 303-220-9200
- Complete our online form to file a complaint
- File a Colorado Department of Labor and Employment complaint for unpaid sick leave, other earned wages, and other violations of Colorado wage and hour law. Workers who have had their rights violated may get pay, possibly restitution, and possibly their job position returned if it has been lost.
- Colorado Department of Labor & Employment: Division of Wage and Hour
- Towards Justice
- A nonprofit law firm that seeks to advance economic justice through impact litigation, strategic policy advocacy, and capacity building
- Know Your Rights with COVID-19
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