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The Colorado Healthy Families and Workplaces Act (HFWA) requires Colorado employers to provide two types of paid sick leave to their employees: public health emergency (PHE) leave and accrued leave. The following points apply to both PHE and accrued leave.

• Leave must be paid for time on leave, and at the same pay rate the employee earns during time worked.
• Leave can’t be counted against employees as absences that may lead to firing or other negative action.

Public Health Emergency (PHE) Leave (Updated to Include Similar Respiratory Illnesses)

Update – November 11, 2022 – Public Health Emergency Leave is Still in Effect — and has Expanded from Just COVID to Flu and RSV Too! 
In addition to “accrued paid sick leave” (addressed below), all Colorado employers, regardless of size or industry, still must provide employees with public health emergency (“PHE”) leave (two weeks — 80 hours, or less for part-time employees) under the Colorado Healthy Families and Workplaces Act (HFWA). Colorado’s 80-hour PHE leave is ongoing: It continues as long as a federal or state PHE is declared (C.R.S. § 8-13.3-402(9)) — and while state public health orders have been scaled back, currently federal and Colorado PHEs both remain declared.

As of November 11, 2022, the conditions covered by Colorado’s latest PHE declaration include health needs related to not just COVID, but also flu, respiratory syncytial virus (“RSV”), and similar respiratory illnesses. Those with flu or RSV symptoms already were likely covered as having COVID symptoms — so a key impact of this expansion may be that coverage remains even if testing confirms someone has flu or RSV rather than COVID. The expansion beyond COVID doesn’t give employees an extra 80 hours for those conditions, it just means they can use their 80 hours for a broader range of conditions.

PHE leave is usable for a range of PHE-related needs, not just for confirmed cases. PHE-related needs include:

• Symptoms of COVID, flu, RSV or other similar respiratory illnesses
• Quarantining or isolating due to exposure
• Testing for COVID or similar respiratory illnesses
• Vaccination and its side effects
• Inability to work due to health conditions that may increase susceptibility or risk of COVID, flu, RSV or similar respiratory illnesses
• Needs to care for family (illness, school closure, etc.)

Employers cannot require documentation from employees to show that leave is for PHE-related needs. 

This 80-hour PHE leave will continue until four weeks after all applicable PHE declarations end or are suspended. Based on the current emergency declarations, PHE emergency leave will continue at least into February 2023, but will continue longer if either the federal or the state PHE declaration is renewed further into 2023.

This excerpt taken from: https://cdle.colorado.gov/hfwa

City of Denver Minimum Wage Increase

Effective January 1, 2023, the City of Denver minimum wage will increase from the current $15.87 per hour, to $17.29 per hour.

State law requires tipped employees like servers and bartenders can only be paid $3.02 an hour less than the minimum wage. If their tips don’t take them up to the actual minimum wage the employer must pay them in “tip credit make-up”.

State of Colorado Exempt Salary Wage Increase

Effective January 1, 2023, the State of Colorado exempt salary wage will increase from $865.38 per week ($45,000 per year) to $961.54 per week ($50,000 per year). Employees cannot be considered exempt if they earn less than this amount, annually, with limited exceptions (Outside Sales persons paid on a commission basis do not fall under these parameters).

Colorado FAMLI (Family and Medical Leave Insurance)

Colorado FAMLI (Family and Medical Leave Insurance) was voted into law by Colorado voters in November of 2020. This law will require that ALL Colorado employees have access to paid family leave for up to 12 weeks (16 for extenuating circumstances following childbirth) any of these circumstances (following 180 days of employment) EFFECTIVE 1/1/2024:

• Care for a new child, including adopted and fostered children
• Care for themselves, if they have a serious health condition 
• Care for a family member’s serious health condition
• Make arrangements for a family member’s military deployment
• Address the immediate safety needs and impact of domestic violence and/or sexual assault.

Employers and their employees are both responsible for funding the program and may split the cost 50/50. The premiums are set to 0.9% of the employee’s wage, with .45% paid by the employer and .45% paid by the employee. Employers may also elect to pay the full amount if they choose to offer this as an added perk for their employees. THE PREMIUMS MUST BEGIN TO BE COLLECTED AS OF 1/1/2023, THOUGH BENEFITS CAN’T BE USED UNTIL 1/1/2024.

Businesses with nine or fewer employees do not have to contribute to the program, but do need to remit their employees’ share (.45%)  of premium payments on behalf each quarter. This can be done through a simple payroll deduction. InTANDEM HR will handle the payroll deductions for each of our clients.

While an employee is on leave, any of their benefits must be maintained in the same manner with the same employer contribution, and their jobs must be held (so it is similar to FMLA in that manner, but impacts all of us and not just larger employers, like the FMLA).

Employers who offer their own paid leave program may apply for an exemption. Exemption applications will be reviewed to determine whether or not the employer’s private plan is adequately comparable to the benefits provided by the FAMLI program.

The state of Colorado has an AMAZING website to address our questions about FAMLI:

Colorado Secure Savers Program

The Colorado Secure Savers Program requires that any employer in the state of Colorado with five (5) or more employees, whom as an employer has been active for more than two years and does NOT ALREADY OFFER a qualified retirement program (like 401(k)), offer the Colorado Secure Savings program. This is an automatic enrollment program that places savings into a Roth IRA, which means that contributions are made with after-tax dollars. When you retire and start taking money out of your Roth IRA (like you’re paying yourself), there are no taxes. In other words, all the interest that your account earns over the years is tax-free.

Upon enrollment, employees will be opted into the default savings rate for Colorado Secure Savings: 5% of their gross pay. Beyond this, deferral rates may vary depending on how much you want to save each year. In addition, age, marital status, and income play a role in the amount that you can contribute. The new Colorado plans will “travel with” people even if they change jobs or leave the state. Keep in mind that the program is voluntary and flexible. Employees are not required to participate and can always cancel their participation at any time.

Because we get the opportunity to talk to all of our clients about their benefits! This is a great time for all of us. A big part of the benefit of partnering with InTANDEM HR are the massive amounts of employee benefits that we spend heaps of time cultivating to pass through to our wonderful client partners. Our fourth quarter is all about seeing through to fruition the work we’ve done throughout the year to maintain competitive benefits offerings. We love hearing from all of you with your great questions about how to create, maintain, and improve competitive benefits packages that help to attract and retain talent and set you apart as an employer of choice. We are also here to help navigate the upcoming FAMLI and Colorado Savers programs. Please keep us in touch and in mind while you contemplate your benefits strategy for 2023!

The extension of the federal Public Health Emergency (PHE) was formally extended, again, on July 15th. Given that the PHE can be extended for up to 90 days at a time, it runs through October 13, 2022. The Biden administration has indicated there will be a 60-day notice period before any end to the PHE. Colorado has not received this notice and expects the PHE to be extended again in October. This means that Colorado employer’s obligation to pay PHE pay for COVID related reasons will continue for at least a few more months. We will alert everyone to any changes as it relates to employer’s obligations under the PHE.

Effective January 1, 2023, the process for attempting to recoup unreturned company property from Colorado employees will become more laborious. It has been necessary to obtain a “receipt of company property” form in order to attempt a deduction in the past, and still will be, but we will now need to take a couple of more steps in order to ensure we are on the right side of the CDLE. Whenever any company property is issued to an employee, ensure that you are including the date it is received, description of item, cost of the item, and the appropriate language on the form to ensure a proper deduction can be made (please use the InTANDEM HR form or something that contains the same approved language). Going forward, in addition, if the property is not returned, in order to deduct the fair market value from final pay, an employer must provide notice to the employee within 10 days of separation containing 1). a written accounting specifying the amount of money or the specific property the employee failed to return (so this includes unpaid loans) 2). the replacement value of the property (fair market value) 3). date the property/money was given to the employee 4) when the employee should have paid the money or returned the goods.

Then, if they do pay the money or give the property back within 14 days of the notice, the employer must pay back the employee the amount of the deduction within 14 days of getting the money/property back.

I cannot express how frequently I get questions about unreturned company property. It is a thing. Now is the time to shore up your process – get those forms signed, make sure employees understand the expectation of returning everything, and let’s get used to the new process now.

Senate Bill 22-161 ups the ante for employer wage mishaps. Beginning January 1, 2023, employers who don’t pay owed wages within 14 days will face an automatic penalty of either two times the amount of the unpaid wages, or $1,000, whichever is greater. For proven willful violations, that goes up to three times or $3,000. Employees can now make demands for similarly situated employees on their behalf, as well as on their own.

Two recent changes in Colorado employment law require updates to your labor law postings:

#1 the Colorado Department of Labor and Employment has updated their Workers’ Compensation – Notice of Injury notice. The updated notice reflects a new law that changes the requirement for reporting injuries to an employer from four days to ten days. Any other written policies or procedures outlining the process for reporting injuries should be update as well.

#2 The Colorado Department of Regulatory Agencies has updated their Discrimination in Employment notice. The updated notice reflects a new law extending the time limit to file a charge of employment discrimination with the Colorado Civil Rights Commission from 6 months to 300 days after the alleged discriminatory or unfair practice occurred.

InTANDEM HR has emailed our clients a copy of both of these updated posters and uploaded the electronic version to the Employee’s Self-Service portal online.

August 10th, 2022, will mark the ban of non-compete clauses handed to workers in Colorado who make less than $101,250 in 2022, and will be adjusted annually by the Colorado Department of Labor. Colorado’s new limit aligns with the very top of the “low wage” non-compete thresholds set by Washington state and Oregon. The Bill’s prohibitions will also apply to customer non-solicits, but excludes employees earning equal to or greater than 60% of the highly compensated threshold – roughly $60,750 in 2022.

Any restrictive covenants that is given to a candidate prior to accepting a job has to be given to them prior to accepting employment, and given to a current employee at least 14 days prior to the effective date of the covenant. Notices of a restrictive covenant must: (1) be provided with a copy of non-compete; (2) identify the agreement by name and state that the agreement contains a non-compete; and (3) direct the worker to specific sections or paragraphs of the agreement that contain the non-compete.

Any business that requires a non-compete or non-solicit of their candidates or current employees should obtain the counsel or an employment law attorney to ensure these documents are prepared legally and are enforceable.

Rising gas prices have inspired the Internal Revenue Service to increase the “optional standard mileage rate” used to calculate tax deductions by 4 cents a mile for the last six months of 2022. This adjustment is normally not made mid-year.

The optional adjustment starts July 1 and brings the IRS rate to 62.5 cents per mile. It comes after a 2.5-cent increase went into effect in January and represents the first mid-year adjustment made since 2011, the IRS said.

• Taxpayers use the rate to calculate the “deductible costs of operating an automobile for business and certain other purposes” instead of tracking actual costs.
• It’s also used as a benchmark by the federal government and many businesses to reimburse their employees for mileage. 

Employers do not have to mirror the federal rate nor legally offer gas reimbursement.

Colorado’s Healthy Families and Workplaces Act (HFWA) mandates paid sick leave as well as COVID related PHE pay, and Southwest Airlines is suing because of it. According to court documents, Southwest claims the HFWA “imposes a pervasive and comprehensive paid sick leave scheme on employers.”

Their beef is not in providing paid sick leave benefits, which they assert they already do, but rather with the complete lack of ability they now have to require proof of illness when employees take sick leave. The HFWA only allows employers to request substantiation of paid sick leave taken under the act when illnesses have extended beyond four or more consecutive days. This means that an airline attendant, for example, seeking to take sick leave under the HFWA could communicate their illness with no advanced notice, potentially resulting in delays or cancellations of flights, they assert.

Because of union negotiations, based on collective bargaining agreements, the airline said their existing sick leave policy allows the company to monitor absences to ensure sick leave is not abused and to comply with federal safety rules. Unlike the HFWA restrictions, their former sick leave plan regulates discipline for abuse of sick time, including disciplinary action up to and including termination of employment.

This will be a fascinating one to watch, from the ground.