Respiratory Illnesses Added to Colorado Disaster Recovery Order are Now a Reason to Take PHE Leave

Beth Ann Lennon

Although Colorado’s Healthy Families and Workplaces Act (“HFWA”) has not been amended by the legislature since it was passed in mid-2020, the Colorado Department of Labor and Employment’s (“CDLE”) interpretation of that law has continued to evolve.

As we have written about recently, the CDLE’s interpretation of the public health emergency (“PHE”) provision of HFWA, which requires employers to “supplement each employee’s accrued paid sick leave as necessary to ensure that an employee may take” up to 80 hours of paid sick leave (less for part-time employees) for covered PHE-related reasons, means that Colorado employers should still provide paid leave for COVID-related absences for any employees who have not used their full allotment since Jan. 1, 2021.

Just a few days ago, the DCLE made another change that employers need to have on their radar.  Relying on the governor’s Nov.11, 2022, modification of his emergency declaration to “refocus the state’s efforts on recovery and incorporate Respiratory Syncytial Virus (RSV), influenza, and other respiratory illnesses in Colorado into the disaster declaration,” the CDLE clarified that “means they can use their 80 hours for a broader range of conditions” than just COVID, including “flu, respiratory syncytial virus (“RSV”), and similar respiratory illnesses.”

This most recent interpretation does not require any employers to “top up” an employee’s PHE leave balance or provide any additional sick leave, if the proper PHE leave was provided when the COVID -19 PHE was “declared” (according to the CDLE’s interpretation of HFWA) on Jan. 1, 2022.  However, if an employee has PHE leave remaining, “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; and
  • Needs to care for family (illness, school closure, etc.).

The CDLE also reminds employers they “cannot require documentation from employees to show that leave is for PHE-related needs.”  It remains unclear for how long employers will have to permit PHE leave use for “flu, RSV, or similar respiratory illnesses,” particularly as these clearly don’t constitute “an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent” (a required element of the definition of a public health emergency in HFWA) on their own. For now, employers should make sure they are permitting employees to take leave, if they have any available, for any of these “respiratory illnesses” and keep an eye out for additional changes from the CDLE’s guidance on what they expect from employers.

If you have any questions about this new interpretation or how you apply it to your employees’ sick leave, please contact your Sherman & Howard attorney.