It seems like just yesterday employers approached the end of 2020 hopeful 2021 would be better than the year before. But here we are two years later approaching the third year of a public health emergency in Colorado related to the COVID-19 pandemic. On. Nov. 11, Gov. Jared Polis issued an executive order expanding the public health emergency declaration.

Executive Order D 2022 044 amends Executive Order D 2021 122, which went into effect July 8, 2021 and focused on the recovery from the COVID-19 pandemic emergency. Executive Order D 2021 122 in turn amended the original Executive Order D 2020 003 that first established the COVID-19 public health emergency.

The new executive order expands the existing disaster emergency to include respiratory syncytial virus (RSV), influenza and other respiratory illnesses due to serious increases in infections and hospitalizations throughout the state. This isn’t a new public health emergency. It simply expands coverage of the public health emergency that’s existed in one form or another for nearly three years.

The expanded public health emergency allows an employee to take any remaining public health emergency leave (PHEL) for the following reasons:

Symptoms of COVID, flu, RSV or other respiratory illnesses.

Quarantining or isolation due to exposure.

Testing for COVID or similar respiratory illnesses.

Vaccinations and their side effects.

Inability to work due to health conditions that could increase susceptibility or risk of COVID, flu, RSV or similar respiratory illnesses.

Care for family for illness, school closures and other reasons.

The expanded rule doesn’t require employers to grant new PHEL time. It only allows employees to use what they didn’t already use for COVID-related reasons.

The Colorado Department of Labor and Employment explained in a Nov. 11 news release: “Those with flu or RSV symptoms already were likely covered as having COVID symptoms — so a key impact of this expansion may be that coverage remains even if testing confirms someone has flu or RSV rather than COVID. The expansion beyond COVID doesn’t give employees an extra 80 hours for those conditions, it just means they can use their 80 hours for a broader range of conditions.”

That raises the question of how the supplemental leave is calculated. Many employers operated under the mistaken understanding the Colorado Healthy Families and Workplaces Act (HFWA) required employers to award a new bank of 80 hours for PHEL in addition to other paid leave available for sicknesses. In fact, the HFWA, the regulations to the HFWA and original CDLE INFO 6B all required employers to provide a supplement sufficient, when combined with other paid leave, to allow up to a total of 80 hours for PHEL. The supplement was to be calculated on Jan. 1, 2021, or the date of the employee’s hire, whichever occurred later. If employees subsequently used non-PHEL for non-PHEL related purposes, the employer was not required to provide additional PHEL.

Unfortunately, the most recent version of INFO 6B provides that the supplement is determined by “supplementing the employee’s unused, accrued leave at the time of the request with enough PHE leave to ensure the employee can take” 80 hours of leave for full-time employees or an amount determined by formula for part-time employees. 

Whether an employer chooses to follow the statute and regulation or the latest CDLE guidance document, those employers who generously, even if mistakenly, provided a separate new award of 80 hours of PHEL to employees face no dilemma. Those who followed the HFWA and its previous guidance are left scratching their heads, along with employment lawyers trying to resolve this situation. Most employers could find the difference between the calculation using the earlier date or the date of the leave request too small to fight over. But employers seeking to resolve the question of what PHEL must be provided should discuss the matter with an employment attorney. Employers Council attorneys are available to advise enterprise and consulting members on this and other employment matters for no additional fees.