As another COVID year comes to a close, there’s confusion among employers who are balancing vaccine requirements with labor shortages and trying to keep up with changes to national, state and local labor laws.
Some government mandates are facing challenges in court, but other COVID-related policies, like paid sick leave, will continue into 2022. Providing 80 hours of COVID sick pay to workers didn’t end when Gov. Jared Polis lifted the public health emergency order in July.
“A lot of people thought that as certain emergency orders end, that ends the 80-hour COVID leave. But what the legislature wrote in the paid sick laws was that if any form of disaster emergency related to COVID continues, the paid leave continues,” said Scott Moss, director of the Division of Labor Standards and Statistics in the state labor department.
“The 80-hour COVID leave will end only when all disaster emergency orders, state or federal, end — and that hasn’t happened yet,” Moss said.
Some employers said that requiring workers to get vaccinated is challenging when it’s already difficult to hire enough workers. There’s also the changing mask and vaccine mandates, which make it hard to keep track. Plus there’s new confusion as to what “fully vaccinated” means and whether it should include a booster shot. There’s also less financial support for employers — a federal tax credit for employers that paid sick leave ended Sept. 30.
“There’s a patchwork of laws and public health orders and executive orders that govern Colorado businesses these days and it’s very complicated to be in compliance with them,” said David Gartenberg, a shareholder in the Denver office of Littler Mendelson, P.C., an employment law firm that represents employers. “Particularly since the federal mandates have been first blocked by the courts and then unblocked by the courts or partially unblocked by the courts, knowing exactly what it is Colorado employers need to do is complicated.”
Vaccine and mask policies
Nationwide, the Biden administration ordered certain health care workers and private companies with 100 or more employees to get staff fully vaccinated or tested weekly by Jan. 10. The rule was challenged and then reinstated by a federal appeals panel on Dec. 17. But everything could change again after the U.S. Supreme Court hears challenges to some of Biden’s mandates on Jan. 7.
In Denver, various groups have sued the city over its vaccine requirement for employees and contractors. A judge in late September dismissed a case brought by seven Denver police officers who called the mandate invalid, according to a 9News report.
But soon after, the Colorado Contractors Association and six other trade groups sued, too, saying the city mandate would create construction delays and leave them short staffed “because up to half of the employees in the construction industry are vaccine hesitant,” according to the lawsuit.
So far, the lawsuits haven’t changed the city’s mandate.
“As we move into 2022, the city and county of Denver will maintain current vaccination requirements for city employees, workers in high-risk settings and city contractors,” Courtney Ronner, a spokeswoman for the Denver Public Health & Environment department, said in an email. “Businesses not subject to the vaccination public health order have the flexibility to mandate their own vaccine requirements and those policies/procedures are maintained by those specific businesses.”
Denver’s vaccine mandate requires city and county employees and workers in high-risk settings to be vaccinated. “The vaccine mandate for city employees still stands,” said Jacqlin Davis, a spokeswoman for the city attorney’s office. “Denver continues to be pleased that over 99% of its own employees are in compliance with the vaccine mandate.”
There’s no statewide vaccine mandate in Colorado for all private employers outside of health care staff in settings with high risk patients and the pending federal rule overseen by the Occupational Safety and Health Administration. And some small employers with fewer than 100 employees may not fall under any sort of federal or local mandate. (Here are links to current vaccine mandates in Colorado).
But it’s best to check in with your local health department to find out the latest, advised Gartenberg, the employment lawyer. Littler Mendelson tracks state policies on its site. In Colorado, areas with indoor mask mandates for private employers include the counties of Adams, Arapahoe, Boulder, Denver, Eagle, Jefferson, Larimer, Pitkin and San Miguel. Broomfield County’s mask mandate applies only in city and county buildings.
As for vaccine mandates, the Supreme Court has so far allowed state rules to remain. Gartenberg pointed to Maine’s requirement that health care workers be vaccinated — and not allowing religious exemptions. The Supreme Court declined to block it. It’s the federal mandate that is in question and he advises businesses to keep track of local rules and prepare for upcoming deadlines.
“Even if something has been blocked or is still on deck with a final resolution forthcoming, you need to still plan as if it’s going to take effect,” Gartenberg said. “For example, the OSHA rule requires everybody to be vaccinated or start getting tested. The first part takes effect Jan. 10. And the Supreme Court is hearing arguments on it on Jan. 7. If the Supreme Court upholds it and you haven’t taken any steps to comply, you are going to be really scrambling to get into compliance by Jan. 10.”
The Colorado Restaurant Association is advising members to create and implement a written vaccination and testing policy ahead of the Jan. 10 federal deadline, and allow time off for employees to get vaccinated, said Sonia Riggs, the association’s president and CEO.
“It’s always impactful when restaurants have to pay employees for time away from work, particularly in light of the almost two years of financial and operational hardship the industry has suffered during the pandemic,” Riggs said in an email. “That said, restaurants will continue to be hyper-vigilant about the health and safety of their teams and their guests, and that includes fully complying with the (federal rule).”
COVID paid leave still in effect in 2022
The confusion over COVID paid leave caused Moss, from the labor department, to update the public notice and paid-leave poster that employers are required to post at the workplace. There’s now a red asterisk that notes “a qualifying emergency remains in effect as of January 2022.”
“The poster is updated annually,” Moss said. “But when we realized as of the fall, there’s this confusion about what does and doesn’t continue, that’s when we updated the (public notice).”
A different type of paid leave begins Jan. 1 for employers with 15 or fewer employees. As part of the Healthy Families and Workplaces Act, the state law went into effect earlier this year for larger employers. Smaller employers must now also allow workers to accrue paid leave at a rate of one hour per 30 hours worked for up to 48 hours a year.
So, starting in January, employers must offer both types of leave — with the COVID leave ending when all disaster orders are over. For employers who’ve already paid COVID sick leave to an employee, the 80 hours doesn’t start over on Jan. 1 if a worker used it up in 2021, Moss added.
“We get thousands of complaints a year of all kinds of labor law violations, mostly wage and hour, but a number of paid sick leave violations,” said Moss, who counted up 300 between January and November. That’s about 10% of all complaints coming into the labor department regarding wages.
As for the federal vaccine mandate, the relevance to the agency at this point is that employers must offer paid time off for workers to get vaccinated — and recover if they experience any vaccine side effects that prevent them from working.
“Whether the vaccination is mandated by federal law or an employer or voluntary, the paid sick law is the same and that would be what we have jurisdiction over,” Moss said.
Questions? The Colorado Department of Labor Standards and Statistics welcomes your queries: [email protected] or call 303-318-8441.