WHAT IS THE LAW?
Under the Healthy Families and Workplace Act (HFWA), which became law July 14, 2020, an employer is to provide 80-hours of supplemental paid leave as of the date a public health emergency is declared. Executive Order D 2020 268 was signed December 3, 2020 by Governor Jared Pollis, which extended the COVID public health emergency through December 27, 2020. Resulting from the extension of the public health emergency is a qualifying event under the HFWA that triggers a requirement for employers to provide employees with 80-hours of paid COVID leave in 2021.
The requirement to provide 80-hours of paid COVID leave in 2021 is separate and distinct from the Emergency Paid Sick Leave (EPSL) under the Families First Coronavirus Response Act (FFCRA). The 80-hour requirement only applies to full-time employees. Employees normally working less than 40 hours per week are due the greater of 1) number of hours scheduled to work in the upcoming fourteen-day period, or 2) the number of hours actually worked on average in the fourteen-day period prior to the declaration of the public health emergency.
In 2020 the 80-hour paid COVID leave requirement under the HFWA coincided with the FFCRA and an employer could receive a tax credit for paying sick leave related to COVID-19. However, the paid COVID leave requirement in 2021 does not depend on tax credits being available. For example, if an employee was paid 80-hours of paid leave in 2020, and the employer received a tax credit under the FFCRA, that same employee is eligible for 80-hours of paid leave in 2021 under the HFWA. The employer in this example will not receive a tax credit in 2021.
Accrual of Paid Sick Leave begins January 1, 2021 under the HFWA, for employers with 16 or more employees, but employees are eligible for a supplemental balance of paid COVID leave before the accrual begins. Employees retain their accrued Paid Sick Leave rights during a public health emergency. Employees continue accruing Paid Sick Leave, up to 48 hours per year and they may use paid COVID leave for any qualifying conditions listed below before using accrued paid leave.
What are Qualifying reasons for paid COVID leave?
- Needing to self-isolate due to either being diagnosed with, or having symptoms of, a communicable illness that is the cause of the PHE
- Seeking a diagnosis, treatment, or care (including preventive care) of such an illness
- Being excluded from work by a government health official, or by an employer, due to the employee having exposure to, or symptoms of, such an illness (whether or not they are actually diagnosed with the illness)
- Being unable to work due to a health condition that may increase susceptibility or risk of such an illness
- Caring for a child or other family member in category (1), (2), or (3), or whose school, child care provider, or other care provider is unavailable, closed, or providing remote instruction due to the emergency
What is the timing of the law?
Beginning January 1, 2021 employers of all sizes are to provide up to 80-hours of paid COVID leave to employees that have a qualifying reason.
How can RSI assist restaurants to remain in compliance with the law?
RSI’s payroll system will track the accrual of paid sick leave separate from the 80-hours of paid COVID leave. A specific job code can be created to disperse paid COVID leave and track employees’ hours separate from the paid sick leave requirement under the HFWA. The accrued paid sick leave hours, as well as the paid COVID leave, will be reported on each employees’ pay stub whether they receive a paper check stub or electronic check stub.
This information can be found in the Interpretive Notice & Formal Opinion (INFO) #6B & INFO #6C.
If you’re an RSI Client and have any questions, please send a Support Request to Compliance or an email to Compliance@rsiaccounting.com