While the coronavirus pandemic killed the chances for some of the most ambitious legislation introduced in the first half of this year’s legislative session, state lawmakers are back after a two-month break and pushing through new bills that would affect workers and their employers.
Senate Bill 207, which passed the Senate June 8 and is now in the House, expands unemployment eligibility for several groups of workers. The bill directs the state’s unemployment insurance division to consider whether a worker has left their job or refused new work because the employer required them to work in an environment that is not in compliance with public health guidelines or laws and regulations on disease mitigation and workplace safety.
Under the bill, a person could also be eligible for unemployment benefits if they have left or refused work because they’re the primary caretaker of a child enrolled in a school closed due to a public health emergency or if they are caring for a family member quarantined due to illness during a public health emergency. Additionally, the bill expands eligibility to a worker who is immunocompromised and more susceptible to illness during a public health emergency.
Sherman & Howard associate Joe Hunt said he expects the bill to increase unemployment insurance premiums for employers. “Unemployment has and will continue to reduce payroll, which will also reduce the number of premiums available to the program,” he said. “This is going to increase costs for many employers, and there’s going to be a significant strain on the system.”
Another bill, Senate Bill 205, creates the “Healthy Families and Workplaces Act” requiring employers to offer paid sick leave to workers. Starting in 2021, employers would be required to provide up to 48 hours of paid sick leave annually to workers, who would begin accruing the sick leave upon employment at a rate of one hour per 30 hours worked. Employees would be allowed to use the paid sick leave as it is accrued and may carry unused sick leave forward to future calendar years. The leave could be used to cover an employee’s own illness or treatment or for caretaking duties related to a family member’s illness or a child’s school closure due to a public health emergency.
The bill also has a coronavirus-specific provision requiring employers to provide paid sick leave through the end of 2020. Employers of all sizes would have to offer paid leave to cover pandemic-related absences for the amounts and reasons specified in the Emergency Paid Sick Leave Act of the Families First Coronavirus Response Act. The EPSLA gives full-time employees up to 80 hours of paid sick leave for those unable to work because they are sick or quarantined due to COVID-19, caring for a sick or quarantined person or caring for a child whose school or childcare provider is closed due to the pandemic.
The bill was hotly debated on the Senate floor but passed 19-14 on June 9 and is now in the House. Sen. Jeff Bridges, a Democrat and one of the bill’s sponsors, said 40% of Colorado’s employers don’t offer sick days, and as a result, workers have continued to go to work throughout the pandemic, exacerbating the spread of the virus. “No one wants a burger and fries with a side of COVID,” Bridges said. “And this bill helps to keep that from happening.”
Senate Republicans spoke out against the sick leave legislation. Sen. Vicki Marble called it an “incredibly egregious” and “horrific” bill that “makes the assumption all businesses are in the financial position to actually do this without taking into account that many businesses are opening up on a shoestring and on a prayer after a shutdown.”
A third bill, House Bill 1415, addresses whistleblower protections during public emergencies. It would prohibit employers and certain entities that rely on independent contractors from discriminating, retaliating or taking adverse action against workers who raise concerns about workplace health and safety hazards related to a public health emergency. Workers who voluntarily wear their own personal protective equipment would also be protected.
Hunt noted that many of the protections in the bill are already present under the Occupational Safety and Health Act, but HB 1415 provides a private right of action so workers can take the employer to court after they’ve exhausted administrative remedies.
“I think that the takeaway from these bills is that they propose expanded benefits to workers, they streamline claims for benefits and offer greater protections for employees who voice complaints about workplace safety,” Hunt said of the bills under consideration.
“These bills are shifting costs to employers and insurance companies in order to protect employees as a matter of policy,” he added, and recommended employers and in-house counsel reduce the risk of COVID-19 in the workplace and document everything they’re doing to keep employees and customers safe.
They should also make sure they have the right insurance policies — including commercial general liability, errors and omissions, and directors and officers liability insurance — to protect against claims arising from the pandemic.
“The best strategy for limiting potential liability is strict adherence to the applicable public health orders and to document everything they’re doing to comply,” Hunt said.
Hunt added that Colorado’s Safer at Home Order encourages employers to deputize a worker to coordinate a company’s COVID-19 response, and he thinks that’s good advice. “The guidance recognizes that dealing with COVID-19 is really a full-time job,” he said.
—Jessica Folker