Colorado’s HFWA & PHEW: What You Need to Know

On July 14, 2020, Governor Jared Polis signed two laws that immediately went into effect: the Healthy Families and Workplaces Act (Colorado HFWA) and the Public Health Emergency Whistleblower law (PHEW). These laws affect almost all businesses based in Colorado and should be reviewed carefully by both employers and workers alike.

What Colorado Employers Need to Do

To help ensure your workers are fully informed of their new rights, please download this informative poster from the Colorado Department of Labor and Employment, email it to all of your workers, and make sure it is displayed prominently in your workplace.

If more than 5% of your workforce speaks Spanish as their primary language, you must also include the Spanish language version of this poster in your email and post it prominently alongside the English version.

What is HFWA & How Does It Impact My Business?

The Colorado HFWA was passed in 2020. It states that employers must provide paid sick leave at the rate of 1 hour per every 30 hours worked, up to 48 hours per year. Paid sick leave can be used for any mental or physical illness, injury or health condition that prevents the employee from working.

The bill was expanded in August of 2023. The expansion of the bill added the following new triggers that allow an employee to use paid sick leave:

• grieving or attending the funeral or memorial service after the death of a family member
• caring for a family member whose school or place of care has been closed because of inclement weather (such as the employee’s child)
• evacuating their residence because of inclement weather or loss of power or water

Here is a complete list of health and safety needs that paid sick leave can be used for:

• Inability to work due to a mental or physical illness, injury, or health condition.
• Obtaining preventive medical care (including vaccination), or medical diagnosis/care/treatment.
• Needs due to domestic abuse, sexual assault, or criminal harassment including medical attention, mental health care or other counseling, legal or other victim services, or relocation.
• Care for a family member who needs the sort of care listed above.
• During a PHE, a public official closed the employee’s workplace, or the school or place of care of the employee’s child.
• Effective Aug. 7, 2023: Bereavement, or financial/legal needs after a death of a family member; or
• Effective Aug. 7, 2023: Due to inclement weather, power/heat/water loss, or other unexpected event, the employee must
  1. evacuate their residence, or
  2. care for a family member whose school or place of care was closed.

COVID-19 Provisions That Ended in June 2023

Key Focus: Paid Employee Leave for COVID-19 Related Reasons

HFWA was enacted at the height of the COVID-19 pandemic, so it required employers of all sizes to offer two types of paid sick leave: accrued sick leave and Public Health Emergency leave (PHE.)

The specific COVID-19 stipulations of the law expired in June 2023. PHE leave is no longer in effect.

Employees were eligible for PHE leave if they:

• Had COVID-19 symptoms and were seeking a medical diagnosis
• Had been instructed by a health provider or government agent to quarantine or isolate due to COVID-19 risk
• Were taking care of someone else who had been ordered to quarantine or isolate
• Were taking care of a child whose school, place of care, or childcare was closed or unavailable

This leave plan mirrored the requirements of the Families First Coronavirus Response Act. While the federal act did offer some exceptions, this new piece of legislation passed by Governor Polis offered extremely limited exceptions.

How Much Paid Leave Are Employees Entitled To & At What Pay Rate?

Employees are entitled to up to forty eight (48) hours of paid leave. This paid leave is to be paid out at the employee’s regular pay rate.

This leave pay rate does not include overtime or bonuses. If an employee’s pay is all or partially sales-based (commission), the employee must be paid either their hourly or salaried rate or at the applicable minimum wage (whichever is higher).

Covering the Cost of Leave

Companies with less than 500 employees can claim the FFCRA credit to reimburse their leave-associated costs. However, employers with more than 500 employees are not eligible for reimbursement and must absorb the entire cost of HFWA paid leave.

Documentation Requirements

Though the types of leave and documentation requirements outlined in this new law also mirror those found in the FFCRA, this new piece of legislation mandates that Colorado employers cannot deny leave simply because an employee is unable to provide immediate documentation that states the reason for their leave.

Employee Safeguards

The act clearly states that employers are not allowed to take any adverse action against employees that choose to take leave under the act.

What If My Business Is Closed?

Businesses that are closed, either permanently or temporarily, are not subject to HFWA as employees of such companies are considered either laid-off or terminated.

What Is PHEW & How Does It Impact My Business?

Key Focus: Personal Protective Equipment in the Workplace & Protecting Whistleblowers

Who Is Affected?

This law mandates that all employers and businesses with more than 5 independent contractors must now expand their whistleblower protections. PHEW provides whistleblower protections for both employees and contractors who voice concerns about public health issues in their workplace. Public health issues may include violations of face-covering mandates or other public health concerns.

COVID-19 Provisions That Ended in May 2022

Prior to May 31, 2022, PHEW’s protection applied only to whistleblower activities related to a “public health emergency.” A public health emergency was defined as “a public health order issued by a state or local public health agency” or “a disaster emergency declared by the governor based on a public health concern.”

Since May 31, 2022 the protected activities are no longer required to related to a public health emergency. As long as they relate to “workplace violations of government health or safety rules,” or are “about an otherwise significant workplace threat to health or safety” an employee is protected.

What If Workers are Mistaken?

Workers’ whistleblower rights are protected even if their claim is incorrect, but only if their claim was made in good faith. 

The law states that if a worker’s PHEW complaint, request, or other activity is incorrect their employer or other businesses need not agree or grant it, but the worker cannot be fired or have action taken against them for that reason if their belief was reasonable and in good faith. However, workers can face consequences for misusing PHEW rights or other misconduct.

What Does This Mean for Employees & Contractors?

PHEW mandates that businesses must allow employees and contractors to wear their personal protective equipment (PPE) as long as:

• The worker’s PPE provides a higher level of protection than the PPE provided by the business
• The PPE meets all federal or state requirements the workplace in question is subject to
• The PPE does not prevent the worker from completing their job safely

Obsidian HR Is Here to Help

The Obsidian HR team is looking into how these laws will affect our clients. While this blog post discussed the immediate effects and outlines actions employers need to take to help ensure employees are adequately informed, we are developing webinars that will dive deeper into the potential long-term impacts. These webinars, and additional information, will be made available on our website in the coming weeks.

Additional Resources

Links to the Colorado Workplace Public Health Rights Posters (English and Spanish):

• Colorado Workplace Public Health Rights Poster: Paid Leave, Whistleblowing, & Personal Protective Equipment
• Poster de Derechos de Salud Pública en el Lugar de Trabajo de Colorado: Pago Por Ausencias Laborales, Denuncia de Irregularidades, Y Equipo de Protección Personal

For more information about paid leave and unemployment in Colorado, please read the Colorado Department of Labor and Employment FAQ.

To help your business keep workers and customers safe, please review the Colorado Department of Labor and Employment’s Safer at Home – Guide for Businesses.

For more information about these new laws and how they apply to your business, please contact our team at [email protected]