PHEL Colorado

By: HUB's Absence Management Team

On January 11, 2023, Xavier Becerra, Secretary of Health and Human Services (HHS), renewed the determination that a public health emergency (PHE) exists due to the continued consequences of the Coronavirus Disease 2019 (COVID-19) pandemic. The renewal of the PHE determination is effective as of January 11, 2023.

As a result of this extension, Colorado’s Public Health Emergency Leave (PHEL) for COVID-related leave must continue to be provided by all Colorado employers.

Employers should also start preparing for implementation of Pregnant Workers Fairness Act and PUMP for Nursing Mothers Act that was signed into law by President Biden on December 27, 2022. Both new laws go into effect on June 27, 2023

Overview

• Health and Human Services (HHS) extension of the public health emergency (PHE) determination
• Resulting extension of Colorado’s Public Health Emergency Leave (PHEL) under Healthy Families and Workplaces Act (HFWA) requirements
• Overview of Pregnant Workers Fairness Act
• Overview of PUMP for Nursing Mothers Act

HHW extends determination of a public health emergency (PHE), effective January 16, 2023

On January 11, 2023, Xavier Becerra, Secretary of Health and Human Services (HHS), renewed the determination that a public health emergency (PHE) exists due to the continued consequences of the Coronavirus Disease 2019 (COVID-19) pandemic.

Under section 319 of the Public Health Service (PHS) Act, a determination of a public health emergency (PHE) will last for the duration of the emergency or 90 days, at which point the PHE determination expires, or is extended by the Secretary.

The extension determination made on January 11, 2023, takes effect January 11, 2023, and is now set to expire as of April 11, 2023.

As a result of the public health emergency (PHE) determination by the Health and Human Services (HHS) department, Colorado’s public health emergency leave (PHEL) under the Health Families and Workplaces Act (HFWA) is also extended

As a reminder, all Colorado employers were required to supply “up to 80 hours” (explained below) of Public Health Emergency Leave as of January 1, 2021, remaining in effect until 4 weeks following the end of a federal, state, or local public health order.

This recent extension of the public health emergency determination by the health and human services department requires that employers continue to offer Public Health Emergency Leave (PHEL) through mid-May (4 weeks beyond the current April 11, 2023 expiration date under the HHS PHE determination).

As a refresher, Colorado’s Public Health Emergency Leave has the following rules:

• Public Health Emergency Paid Sick Leave became effective January 1, 2021 as the governor extended the public health emergency.
  
  
• The 80 hours is provided once per public health emergency. (Note: CO PHEL was previously expanded to include other respiratory illnesses; however, as of January 8, 2023, PHEL was reduced to only cover COVID-19 related leave)
  
  
• The 80 hours may include the paid sick leave mandate under CO HFWA (1 hour of paid sick leave per 30 hours worked up to a maximum of 48 hours), vacation time, or other PTO time provided by the employer. This is why we note above that employers need to provide “up to 80 hours” of Public Health Emergency Paid Sick Leave; if the employer provides other paid time off, then employers are only obligated to provide the difference between the employee’s accrued leave and the 80 hours.
  
  
• Part time employees will receive a prorated amount of Public Health Emergency Paid Sick Leave based on the average hours worked over a two-week period.
  
  
• Employers must continue to comply with these requirements until four (4) weeks after the emergency is officially terminated.

Therefore, employers must provide up to 80 hours of Public Health Emergency Paid Sick Leave to all Colorado employees effective January 1, 2021. As a reminder, the availability of Public Health Emergency Paid Sick Leave does not renew year over year.

More information about Colorado’s paid sick leave requirements effective January 1, 2021—including the Public Health Emergency Paid Sick Leave—may be found on CDLE’s website: Paid Sick Leave under the Colorado Healthy Families and Workplaces Act (HFWA)

Pregnant Workers Fairness Act signed into law On December 27, 2022

As part of the Omnibus Budget bill signed into law last December by President Biden, The Pregnant Workers Fairness Act (PWFA) into law. The new law is scheduled to go into effect on June 27, 2023 and it requires employers to provide accommodations for pregnant workers with similar protections that are offered under the American with Disabilities Act (ADA). The Supreme Court ruled in Young vs. UPS that pregnancy was not a covered disability under ADA and the PWFA prohibits employers from discriminating against making reasonable accommodations for employees who are pregnant or have medical related conditions due to pregnancy or childbirth.

Specifically, the bill declares that it is an unlawful employment practice to

• fail to make reasonable accommodations to known limitations of such employees unless the accommodation would impose an undue hardship on an entity's business operation;
• require a qualified employee affected by such condition to accept an accommodation other than any reasonable accommodation arrived at through an interactive process;
• deny employment opportunities based on the need of the entity to make such reasonable accommodations to a qualified employee;
• require such employees to take paid or unpaid leave if another reasonable accommodation can be provided; or
• take adverse action in terms, conditions, or privileges of employment against a qualified employee requesting or using such reasonable accommodations.

The bill sets forth enforcement procedures and remedies that cover different types of employees in relation to such unlawful employment practices.

The Equal Employment Opportunity Commission (EEOC) must provide examples of reasonable accommodations that shall be provided to affected employees unless the employer can demonstrate that doing so would impose an undue hardship.

The EEOC has not provide a timeframe as of this bulleting detailing when they will provide such examples. Employers should start reviewing their handbooks and policies to ensure that they have policies and procedures in place to address the PWFA.

PUMP for Nursing Mothers Act

In addition to the PWFA, the Omnibus Spending Bill also authorized the PUMP for Nursing Mothers Act. The Act extends to more employees that ability to receive breaktime to pump breast milk and have a private place at work to do so.

The bill expands the requirement that employers provide certain accommodations for such an employee to cover salaried employees and other types of workers not covered under existing law. Further, time spent to express breast milk must be considered hours worked if the employee is also working. The bill also extends from one year to two years the available time period for such accommodations.

Additionally, before making a claim of liability against an employer, an employee generally must first notify the employer that they are not in compliance and provide them with 10 days to come into compliance with the required accommodations.

The DOL has noted that details about the changes to the law are forthcoming and will be released in the upcoming weeks.

HUB’s Workforce Absence Management (WAM) team will continue to monitor for any updates or changes.