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Respiratory Illness Added to Colorado Disaster Recovery Order Is Now a Reason to Take PHE Vacation | Sherman & Howard LLC

Although Colorado’s Healthy Families and Workplaces Act (“HFWA”) has not been amended by the legislature since its passage in mid-2020, the Colorado Department of Labor and Employment’s (“CDLE”) interpretation of that act has evolved.

As we recently wrote, the CDLE interpretation of the HFWA Public Health Emergencies (“PHE”) provision, which requires employers to “supplement each employee’s accrued paid sick leave as necessary to ensure that an employee can take up to 80 hours”. of paid sick leave (less for part-time employees) for covered PHE-related reasons means that Colorado employers should continue to provide paid time off for COVID-related absences to all employees who have not used their full allotment since January 1, 2021.

Just a few days ago, the DCLE made another change employers need to be aware of. Citing the governor’s amendment to its Nov. 11, 2022 emergency declaration to “refocus state efforts on recovery and to include respiratory syncytial virus (RSV), influenza and other respiratory illnesses in Colorado in the disaster declaration,” the CDLE noted this clearly “means they can use their 80 hours for a broader range of illnesses” than just COVID, including “flu, respiratory syncytial virus (“RSV”) and similar respiratory illnesses.”

This latest interpretation does not require employers to “top up” an employee’s PHE vacation balance or grant additional sick leave if the proper PHE vacation was granted when the COVID-19 PHE was “declared” (per the CDLE interpretation of HFWA) on January 1, 2022. However, if an employee is still on PHE leave, “PHE leave is usable for a range of PHE-related needs, not just confirmed cases.” PHE-related requirements include:

  • Symptoms of COVID, flu, RSV or other similar respiratory illness;
  • quarantine or isolation due to exposure;
  • testing for COVID or similar respiratory conditions;
  • Vaccination and its side effects;
  • incapacity for work due to health conditions that may increase susceptibility or risk of COVID, influenza, RSV or similar respiratory diseases; and
  • Family care needs (illness, school closures, etc.).

The CDLE also reminds employers that they “cannot require workers to provide documentation to demonstrate that leave is for PHE-related needs.” It remains unclear how long employers must allow PHE leave of absence in the event of “influenza, RSV, or similar respiratory illness,” especially since it is clearly not an “act of bioterrorism, pandemic influenza, or infection caused by a novel and highly deadly infectious agent” (a required element of the definition of a public health emergency in HFWA) on its own. For now, employers should make sure they allow workers to take time off if they have one for any of these “respiratory illnesses” and watch for further changes to the CDLE guidelines on what they expect employers to do.

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