Colorado and Oregon Activate Protection for Leaves Related to Non-COVID Respiratory Disease – Employee Benefits and Compensation

At the start of the COVID-19 pandemic, a number of jurisdictions enacted sick leave laws designed specifically for absences due to COVID-19. However, some states have made permanent changes to their furlough laws that apply during a “public health emergency,” which can apply to COVID-19 as well as other public health emergencies.

With reports of higher-than-average respiratory syncytial virus (RSV) and flu transmission, some of these public health emergency measures are being activated, including in both Colorado and Oregon. In such jurisdictions, employees have additional rights, which may include paid sick leave and job protection for covered absences.

Colorado expands public health emergency leave to include absences related to RSV, flu and other respiratory illnesses

Under Colorado’s Healthy Families and Workplaces Act (HFWA), employers are required to provide employees with access to up to 80 hours of paid sick leave when a public health emergency (PHE)1 has been declared. Employees have access to this PBL leave (PHEL) if they:

  1. self-isolating or excluding themselves from the workplace due to exposure, symptoms, or diagnosis of the communicable disease in the PHE;

  2. seeking a diagnosis, treatment or care (including preventive care, such as vaccination) of such disease;

  3. unable to work due to a health condition that may increase susceptibility to or risk of such disease; or

  4. taking care of a child or other family member that falls into category (1)-(3), or whose school or childcare is not available by the PGO.

The Governor of Colorado first declared COVID-19 a public health emergency on March 11, 2020, and this emergency declaration, which has since been amended dozens of times, remains in effect. That means Colorado employees have been able to access PHEL in connection with COVID-19 since January 1, 2021 (when the Emergency Public Health Part of the HFWA went into effect).

The most recent amendment to the governor’s emergency declaration, issued Nov. 11, 2022, expands this public health emergency to include not just COVID-19, but also RSV, flu, and “other respiratory illnesses” in Colorado – an undefined term that could, in theory, encompass everything from whooping cough to the common cold.

This means that all employers in Colorado must provide up to 80 hours of paid PHEL for absences related to any of these illnesses. In particular, the state labor department confirmed in a statement on its website that this amendment does not create another bucket of 80 hours PHEL: “The expansion beyond COVID does not give workers an additional 80 hours for those circumstances, it just means they can use their 80 hours for a wider range of ailments.”

Nevertheless, if Colorado employees have not yet exhausted their 80-hour PHEL entitlement, that leave can now be used in connection with flu, RSV or other respiratory illnesses in addition to COVID-19. Furthermore, absences for PBL-qualifying reasons are job-protected and employers cannot require documentation from employees to show that leave is for PBL-related needs. Thus, all Colorado employees are now entitled to paid sick leave of up to 80 hours for virtually any respiratory illness. This right will remain in effect until four weeks after the expiration of the current public health emergency declaration.2

RSV emergency declaration activates protection under Oregon’s Mini-FMLA

The Governor of Oregon declared a public health emergency on November 14, 2022 in response to an increase in pediatric cases of RSV. The statement will remain in effect through March 6, 2023, unless extended or terminated earlier by the Governor.

In January 2022, amendments to Oregon’s Family Leave Act (OFLA) came into effect that defined a public health emergency and expanded sick leave for children. The amendments clarified that a “public health emergency” requires a proclamation by the governor to protect public health. Sick-Child Leave, under OFLA, is leave that requires home care (as you might see with RSV, cold, flu, etc.), but does meet the definition of a serious health condition. The amendments expanded “child leave on sick leave” to include the need to provide home care following the closure of the child’s school or daycare due to a public health emergency, and included requirements for verification of a school closure. The amendments also changed OFLA so that employers in Oregon must grant eligible Oregon employees sick leave after only 30 days of employment, instead of 180, if the employee has worked an average of 25 hours per job in the 30 days before taking leave took during a public health emergency.

Next steps

Employers with locations in Colorado and Oregon now have additional leave obligations. However, absences due to RSV, flu, or other respiratory illnesses are unlikely to be limited to these two states. In addition to following announcements from other states and cities, employers may want to consider reacquainting themselves with existing laws such as paid sick leave, paid (or unpaid) family and sick leave, school activity leave, “emergency leave,” and family care, which classify absences as due to COVID-19, RSV, flu and similar illnesses.

Footnotes

1. A “public health emergency” is defined as: (1) an act of bioterrorism, a pandemic flu, or an epidemic caused by a novel and highly deadly infectious agent, for which: a federal emergency has been declared, state, or local public health authority, or a state of emergency is declared by the governor; or (2) a highly contagious disease or agent with epidemic or pandemic potential for which the Governor has declared a state of emergency.

2. The Colorado Department of Labor and Employment advises that the PGO state of emergency will continue until at least February 2023, which means entitlement to PHEL will likely be extended until at least March 2023.

The content of this article is intended as a general guide to the topic. Specialist advice should be sought regarding your specific circumstances.

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