It’s been more than two years since the U.S. Department of Health and Human Services created a new normal for employers in declaring a public health emergency (PHE) in response to the COVID-19 pandemic. The effort included new employment laws and new interpretations of existing laws while increasing telecommuting and other alternative arrangements.

Since the peak of the Omicron variant of COVID-19 in January 2022, HHS reported daily reported cases of COVID-19 have dropped 92 percent even as COVID-19 deaths have declined more than 80 percent and COVID-19 hospitalizations have decreased nearly 80 percent.

Consequently, HHS plans for the public health emergency for COVID-19 to expire May 11. President Joe Biden announced federal public health declarations would end on that date.

In Colorado, a spokesperson for Gov. Jared Polis responded to this news: “Gov. Polis is thrilled that the White House intends to finally provide an end date for the federal emergency. Colorado was one of the first states to end pandemic-related health restrictions in July 2021 and was one of the first states to reopen and get kids back in school. The current Colorado declaration contains no restrictions and is focused on the state remaining eligible for funding under the federal emergency declaration, and the state declaration will not outlast the end of the federal declaration. ”

It appears the end is in sight. Under Colorado law, an employee may use PHE leave for a qualifying absence for four weeks after the end of the PHE declaration — June 8.

I’m fielding questions from employers, though, on what happens to supplemental PHE leave that’s unused. And what happens if another PHE is declared?

First, the status of supplemental leave depends on what type of leave was used to supplement employees’ existing banks of employer-provided leave. In the best-case scenario, the employer granted a bank of supplemental leave separate from regular sick, vacation or paid time off the employer used for qualifying PHE-related absences. In the worst-case scenario, the employer merely added hours to employees’ existing vacation or PTO banks. 

Colorado law is clear that once vacation is accrued, it’s earned and can’t be forfeited. Colorado regulations treat PTO as vacation leave for purposes of leave accrual. Think of vacation or PTO leave as water in a bucket. If an employer poured more water into the bucket without limitations, there’s no way to separate the water by source now.

But every situation depends on facts specific to that situation. An employer who provided an employee supplemental PTO, but specified the PTO was provided only to satisfy the requirements of the Healthy Families and Workplaces Act (HFWA) and was available only until the end of the PHE, could have the ability and right to withdraw that supplement. Employers should seek legal counsel before withdrawing any awards of additional PTO or vacation.

The situation is probably even less clear for employers who awarded additional sick leave to satisfy the supplemental leave requirement. Sick leave is required in Colorado, and  regulations treat sick leave as “wages.” But the HFWA states that unlike vacation leave, an employer isn’t required to pay out unused sick leave balances upon termination of employment. An employer who tracked the amount of supplemental sick leave awarded and used could be able to deduct those hours since they’re not subject to requirements to pay unused sick leave. Again, employers should seek legal counsel on this matter.

In light of recent outbreaks of swine flu, avian flu, influenza and respiratory syncytial virus as well as COVID-19, it’s likely the state or federal governments will declare a new PHE in the future. Now is the time for employers to decide how they will award and administer supplemental PHE leave. Many employers misunderstood the supplemental leave requirement. Colorado law never required a supplement of a straight 80 hours. The law required and still requires an employer provide a one-time supplement at the time the PHE is declared of enough leave when combined with other accrued and available leave to allow the employee to take up to 80 hours of leave for PHE-qualifying reasons.

Now’s the time to determine what type of leave will be awarded. The time to determine how much leave will be awarded is on the day a PHE is declared or an employee is hired, not when the employee needs the leave. What approach employers will use in the next PHE will depend on existing leave programs, payroll system limitations and how an employer balances fiscal considerations with simplicity of administration.

The Employers Council is available to advise consulting and enterprise members on modifying its policies and practices ahead of the next public health emergency.