Crib Sheet: Sick Day

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Colorado law requires all employers (regardless of the number of employees) to provide paid sick leave (PSL). Workers are entitled to at least one hour of PSL for every 30 hours worked, up to 48 hours per year. Employers can, but are not required to, offer more than 48 hours of PSL per year.

There are two ways employers can distribute PSL: either as time off accrued by employees as they work, or as a one-time “payment” of all 48 hours. For the purposes of accrual, exempt employees are presumed to work 40 hours per week. Employees start amassing paid sick leave on their first day of employment. As an alternative to the accrual method, employers can provide the PSL hours to employees in full at the beginning of each year or the start of employment for new employees. (Of note: The statute does not provide a mechanism to “claw back” PSL if it is paid as a lump sum. However, since PSL does not need to be paid out upon termination like vacation time, there is no real monetary risk to using the lump-sum payment method. If an employer is concerned about providing too much PSL in relation to an employee’s hours worked because schedules vary from week to week, the accrual method is probably preferable.)

Employees must be allowed to use PSL for the following reasons:

• A mental or physical illness, injury, or health condition that prevents the employee from working
• Obtaining care, a medical diagnosis, or treatment of a mental or physical illness, injury, or health condition
• Obtaining preventative medical care (including a vaccination, annual physical, wellness visit, etc.)
• Caring for; obtaining a medical diagnosis, care, or treatment; or obtaining preventative medical care for a family member with a mental or physical illness, injury, or health condition
• Seeking or obtaining medical attention, victim services, counseling, relocation, or legal services because the employee or the employee’s family member has been the victim of domestic abuse, sexual assault, or harassment 
• The closure of the employee’s place of business or the school or place of care of the employee’s child due to a public health emergency

If an employee uses PSL for four or more consecutive days, an employer may request reasonable documentation establishing the leave is for an authorized, health-related reason. 

Can employers deny an employee’s request to use PSL?

No. Employers cannot deny an employee’s request to use PSL for one of the above reasons. Employees may be required to make a good-faith effort to provide advance notice of the need for PSL when it is foreseeable, but employers cannot punish employees or deny PSL for failure to provide notice. Employees also cannot be required to find coverage for their shifts during periods of PSL. 

Do employees lose all unused PSL at the end of the year?

No. All remaining PSL up to 48 hours must roll over to the following year. However, employers may prohibit the use of more than 48 hours of PSL in a year. 

Are employers required to pay employees for unused PSL when their employment ends?

No. Employers are not required to pay out unused PSL upon termination or resignation. However, if an employer rehires an employee within six months, it must reinstate the employee’s unused PSL from the prior period of employment. 

In addition to PSL, employers must provide supplemental paid leave during a public health emergency (PHE). Employees who normally work 40 or more hours per week are entitled to at least 80 hours of public health emergency leave. Employees who normally work fewer than 40 hours per week are entitled to PHE leave equal to the hours they are scheduled to work in the next 14 days or the hours they actually worked in the prior 14 days, whichever is greater.  (Because PHE leave is due on the day the emergency is declared, the period for calculating the amount of PHE leave is the immediately preceding 14 days or the immediately upcoming 14 days, whichever provides for the greatest amount of leave.)

PHE leave must be provided in a single, lump-sum payment on the day the public emergency is declared. PHE leave does not renew, regardless of the length of the public emergency.

Employees can use PHE leave up to four weeks after the emergency ends for the following reasons:

• Self-isolating due to being diagnosed with or having symptoms of the illness causing the PHE
• Seeking a diagnosis, treatment, or care (including a vaccination) for the illness causing the PHE
• Being excluded from work by a health official or the employer due to exposure to or symptoms of the illness causing the PHE
• Being unable to work due to a health condition that may increase susceptibility to the illness causing the PHE
• Caring for a family member who is self-isolating, needs a diagnosis, care, or treatment for the illness causing the PHE, or is seeking preventative care for such illness
• Caring for a family member who has been excluded from work due to exposure to or symptoms of the illness causing the PHE
• Caring for a child whose school or place of care has been closed due to the illness causing the PHE 

Employers must notify employees of their right to PSL and PHE leave in writing (on paper or electronically), and must display a poster approved by the Colorado Division of Labor Standards and Statistics in a conspicuous place. An employer that fails to provide written notice is subject to a fine of up to $100 per violation. An employer that fails to display the required posting is subject to a single fine of up to $100. 

Kristina Wright is an associate at Messner Reeves, LLP, a law firm in Denver and other U.S. locations. She regularly assists employers with labor and employment law matters. If you’re a Colorado restaurant in need of assistance, reach out to kwright@messner.com. 

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