Colorado and Oregon Trigger Protections for Leaves Relating to Respiratory Illnesses

​At the outset of the COVID-19 pandemic, a number of jurisdictions enacted sick leave laws specifically designed for absences due to COVID-19. Some states, however, enacted permanent changes to their leave laws that apply during a public health emergency.

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

Colorado's Law

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

• self-isolating or excluded from the workplace due to exposure, symptoms, or diagnosis of the communicable illness in the PHE.
• seeking a diagnosis, treatment, or care (including preventive care, such as vaccination) of such an illness.
• unable to work due to a health condition that may increase susceptibility to or risk of such an illness.
• caring for a child or other family member who is in one of the above categories, or whose school or childcare is unavailable due to the PHE.
  

Colorado's governor 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 that since Jan. 1, 2021, Colorado employees have had access to PHE leave in connection with COVID-19.

The most recent amendment to the governor's emergency declaration issued on Nov. 11 expands this public health emergency to cover not only COVID-19, but also RSV, influenza, and other respiratory illnesses in Colorado—an undefined term that could, in theory, encompass anything from whooping cough to the common cold.

This means that all Colorado employers must provide up to 80 hours of paid PHE leave for absences relating to all of these illnesses. Notably, the state labor department confirmed that this amendment does not create a fresh bucket of 80 hours of PHE leave: "The expansion beyond COVID-19 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."

Nonetheless, if Colorado employees have not yet exhausted their 80-hour entitlement to PHE leave, that leave can now be used in connection with flu, RSV or other respiratory illnesses in addition to COVID-19. Absences for PHE-qualifying reasons are job-protected, and employers cannot require documentation from employees to show that leave is for PHE-related needs. All Colorado employees now have a right to paid sick leave of up to 80 hours for essentially any respiratory illness. This entitlement will remain in effect until four weeks after the current public health emergency declaration expires.

Oregon's Law

Oregon's governor declared a public health emergency on Nov. 14 in response to an increase in pediatric cases of RSV. The declaration will remain in effect through March 6, 2023, unless it is extended or terminated earlier by the governor.

In January 2022, changes to Oregon's Family Leave Act (OFLA) went into effect that defined a public health emergency and expanded sick child leave. The amendments clarified that a public health emergency requires a proclamation by the governor to protect public health.

Sick child leave under OFLA is when a child requires home care (such that you might see with RSV, cold, flu, etc.), but does meet the definition of a serious health condition. The amendments expanded sick child leave to include the need to provide home care due to the closure of the child's school or childcare provider due to a public health emergency. It includes requirements for verification of a school closure.

The amendments changed OFLA so that Oregon employers must provide sick child leave to eligible Oregon employees after just 30 days of employment, rather than 180, if the employee has worked an average of 25 hours per week in the 30 days before taking leave during a public health emergency.

Next Steps

Employers with Colorado and Oregon operations now have additional leave obligations. Absences due to RSV, the flu, or other respiratory illnesses, however, will not likely be contained to these two states. 

In addition to monitoring announcements from other states and cities, employers might want to consider refamiliarizing themselves with existing laws like paid sick leave, paid or unpaid family and medical leave, school activities leave, emergency leave, and kin care, which may cover absences due to COVID-19, RSV, flu and similar illnesses.

David C. Gartenberg is an attorney with Littler in Denver. Cristin Casey is an attorney with Littler in Portland, Ore. © 2022. All rights reserved. Reprinted with permission via Lexology.