Status Update on Public Health Emergency Leave

Carissa Davis

The Department of Health and Human Services renewed the public health emergency (“PHE”) determination on April 12, 2022. The 90-day renewal took effect on April 16, 2022, and if not renewed again, will expire in mid-July.

Under Colorado’s Healthy Families and Workplaces Act (“HFWA”), employers are required to provide extra paid leave to employees when there is a public health emergency (“PHE”) and for 4 weeks after the expiration of the PHE. Confusion has resulted due to multiple government officials and agencies, on both the federal and state level, making multiple emergency and disaster declarations. For HFWA purposes, the expiration of one is of no consequence when the others exist.

HFWA’s definition of a “public health emergency” has resulted in widespread confusion and misinformation. To set off on the right foot, the statutory language is excerpted below:

A “public health emergency” is defined as:

(a)     an act of bioterrorism, a pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which:

(I)     an emergency is declared by a federal, state, or local public health agency; or

(II)    a disaster emergency is declared by the governor; or

(b)     a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

C.R.S. § 8-13.3-402

On July 8, 2021, Governor Polis ended the Health Emergency Executive Orders for COVID-19 and rescinded all previous Executive Orders issued due to the COVID-19 pandemic. With this pronouncement, many incorrectly believed the PHE was over. However, there were other state and federal pronouncements meeting the definition of a “PHE.” Not all renewals and declarations are detailed in this blog, as what matters most to employers is the answer to the question: Where are we now?

Pertinent on the state level, the State Disaster Recovery Order, originally put in place in August 2021, was renewed on March 25, 2022, and absent an extension, is set to expire on April 24, 2022. However, as explained above, the federal declaration extends the PHE to mid-July, so it is inconsequential if the State Order expires. However, by itself the State Disaster Recovery Order would trigger the pandemic provisions of HFWA.

Keep in mind, once the last PHE-triggering declaration ends, employers must still allow employees to use any remaining PHE leave for the 4 weeks after the expiration of the PHE. While true accrued but unused PHE leave need not be paid out upon expiration or termination, if an employer has joined PHE leave with other paid leave benefits, payout obligations may exist.