Employers: The Public Health Emergency is Not Over Yet, Make Sure You Know Your Ongoing Obligations

By Leni Plimpton

It is starting to feel, for many, like COVID-19 is “over”—after all, many of us have had COVID by now, masks are no longer required, big events are back on, and summer is coming. Nevertheless, employers need to be aware that the federal declaration of a public health emergency is still in effect and this creates ongoing obligations. What do employers need to remember about operating during this still-active public health emergency in Colorado?

Public Health Emergency (PHE) Leave.

    • Employees have a right to take this leave during a declared COVID-19 public health emergency and for four weeks after the emergency declaration expires (i.e. is not renewed or is terminated, etc.).

    • Although Governor Polis declared an end to Colorado’s Health Emergency in 2021, the federal declaration remains in place, and was recently extended another ninety days.

    • PHE leave may be taken for reasons related to COVID-19, including illness, quarantine or isolation, testing, vaccination and related side effects, inability to work due to health conditions that make someone more vulnerable to COVID, and COVID-related needs of family such as illness and school closure.

    • Employees who work 40 or more hours a week must be provided with additional paid sick leave, supplementing whatever leave the employee had accrued, to ensure that the employee can take 80 hours of total leave. Part time employees receive an amount of leave that is the greater of (a) the number of hours the employee is scheduled for work in the two-week period after the request or (b) the number of hours that the employee actually worked in the two weeks prior to the PHE declaration or the leave request.

    • The supplemental PHE leave can only be used one time, total.

    • Unlike regular Colorado paid sick leave under the Healthy Families and Workplaces Act, an employer may not require any documentation of the reason for the leave, except in the very limited situation where the employer has a good faith basis to believe the employee might be contagious. (Don’t forget to always treat such sick-leave related documentation as confidential!)

    • Under HFWA, if an employer has a general PTO policy that can be used for both HFWA and non-HFWA purposes, and the employee uses all of their leave for non-HFWA reasons (i.e. personal time), the employer does not need to provide additional HFWA leave. This is not the case for PHE leave—an employer must still provide additional leave for PHE reasons (meaning, if the employee uses some or all of their available PTO for the applicable year, the employer must supplement the current total to bring it up to the PHE required amount.) For example, if an employee receives 80 hours of general-use PTO per year, and if in March 2022 the employee had already used 20 hours of that leave, then if the employee needs to take PHE leave, the employer must ensure that they, essentially, receive that 20 hours back in order to be able to use 80 total for PHE leave. Again, though, the 80 hours of PHE leave may only be used one time total during the public health emergency. So, in the above example, if the employee had used 15 PHE hours the previous year, 2021, the employer would only need to “add back” five, so that the employee is able to use the remaining 65 hours of PHE leave if needed.

    • Final note: both PHE and HFWA require notice and posting (along with a number of other employment laws). Ensure your workplace is compliant with these requirements.

    • It can be tricky to understand how PHE leave works together with HFWA and/or with an employer’s “flex” or general PTO policy. It is important to comply with these leave obligations. If you have questions, do not hesitate to reach out to an experienced employment lawyer.

Public Health Emergency Whistleblower Law (PHEW).

    • Under this law, workers have the right to raise “reasonable concerns about” or oppose workplace health and safety violations during public health emergencies—so long as the concerns are reasonable and made in good faith.

    • Workers must be permitted to use their own personal protective equipment on the job, so long as it does not make the worker unable to do the job.

    • While the employer need not actually address the concern, it still cannot terminate or take other adverse actions against the worker.

    • If a worker raises health concerns, use caution when taking actions that could be construed as adverse.

If you have questions about these or other employment laws, contact the employment team at Fortis Law Partners today!

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