July 21st, 2020

What You Need to Know About HFWA & PHEW

On July 14, 2020, Governor Jared Polis signed two laws that immediately went into effect: the Healthy Families and Workplaces Act (HFWA) and the Public Health Emergency Whistleblower law (PHEW). These laws affect almost all businesses based in Colorado and should be reviewed carefully by both employers and workers alike.

What Employers Need to Do

To help ensure your workers are fully informed of their new rights, please download this informative poster from the Colorado Department of Labor and Employment, email it to all of your workers, and make sure it is displayed prominently in your workplace.

If more than 5% of your workforce speaks Spanish as their primary language, you must also include the Spanish language version of this poster in your email and post it prominently alongside the English version.

What is HFWA & How Does It Impact My Business?

Key Focus: Paid Employee Leave for COVID-19 Related Reasons

Who is Affected?

This act mandates that employers of all sizes offer paid leave to their employees without exception. Employees are eligible for this paid leave if they:

  • Have COVID-19 symptoms and are seeking a medical diagnosis
  • Have been instructed by a health provider or government agent to quarantine or isolate due to COVID-19 risk
  • Are taking care of someone else who has been ordered to quarantine or isolate
  • Are taking care of a child whose school, place of care, or childcare is currently closed or unavailable

This leave plan must mirror the requirements of the Families First Coronavirus Response Act. While the federal act did offer some exceptions, this new piece of legislation passed by Governor Polis offers extremely limited exceptions.

How Much Paid Leave Are Employees Entitled To & At What Pay Rate?

Employees are entitled to up to two (2) weeks (or 80 hours) of paid leave. This paid leave is to be paid out at the employee’s regular pay rate if they have COVID-19 symptoms or have been instructed to quarantine or isolate or at 2/3rds of their usual rate if they are caring for someone else.

This leave pay rate does not include overtime or bonuses. If an employee’s pay is all or partially sales-based (commission), the employee must be paid either their hourly or salaried rate or at the applicable minimum wage (whichever is higher).

What if an Employee Has Already Taken Paid Leave Related to COVID-19?

If an employee has already taken paid leave in 2020 for COVID-19 related reasons that paid leave counts towards the two weeks of paid leave required by HFWA. However, leave provided for non-COVID-19 reasons does not count towards the HFWA mandated minimum.

Covering the Cost of Leave

Companies with less than 500 employees can claim the FFCRA credit to reimburse their leave-associated costs. However, employers with more than 500 employees are not eligible for reimbursement and must absorb the entire cost of HFWA paid leave.

Documentation Requirements

Though the types of leave and documentation requirements outlined in this new law also mirror those found in the FFCRA, this new piece of legislation mandates that employers cannot deny leave simply because an employee is unable to provide immediate documentation that states the reason for their leave.

Employee Safeguards

The act clearly states that employers are not allowed to take any adverse action against employees that choose to take leave under the act.

What If My Business Is Closed?

Businesses that are closed, either permanently or temporarily, are not subject to HFWA as employees of such companies are considered either laid-off or terminated.

What Is PHEW & How Does It Impact My Business?

Key Focus: Personal Protective Equipment in the Workplace & Protecting Whistleblowers

Who Is Affected?

This law mandates that all employers and businesses with more than 5 independent contractors must now expand their whistleblower protections. PHEW provides whistleblower protections for both employees and contractors who voice concerns about public health issues in their workplace. Public health issues may include violations of face-covering mandates or other public health concerns.

What If Workers are Mistaken?

Workers’ whistleblower rights are protected even if their claim is incorrect, but only if their claim was made in good faith. 

The law states that if a worker’s PHEW complaint, request, or other activity is incorrect their employer or other businesses need not agree or grant it, but the worker cannot be fired or have action taken against them for that reason if their belief was reasonable and in good faith. However, workers can face consequences for misusing PHEW rights or other misconduct.

What Does This Mean for Employees & Contractors?

PHEW mandates that businesses must allow employees and contractors to wear their personal protective equipment (PPE) as long as:

  • The worker’s PPE provides a higher level of protection than the PPE provided by the business
  • The PPE meets all federal or state requirements the workplace in question is subject to
  • The PPE does not prevent the worker from completing their job safely

Obsidian HR Is Here to Help

The Obsidian HR team is looking into how these laws will affect our clients. While this blog post discussed the immediate effects and outlines actions employers need to take to help ensure employees are adequately informed, we are developing webinars that will dive deeper into the potential long-term impacts. These webinars, and additional information, will be made available on our website in the coming weeks.

Additional Resources

Links to the Colorado Workplace Public Health Rights Posters (English and Spanish):

For more information about paid leave and unemployment in Colorado, please read the Colorado Department of Labor and Employment FAQ.

To help your business keep workers and customers safe, please review the Colorado Department of Labor and Employment’s Safer at Home – Guide for Businesses.

For more information about these new laws and how they apply to your business, please contact our team at [email protected]

Watch Our On-Demand Webinar: Understanding HFWA and PHEW

Watch this on-demand webinar to learn more about HFWA and PHEW and how you can be compliant.

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