Denver’s Proposed Paid Sick and Safe Time Ordinance Moves Forward

In November 2011, Denver voters will decide whether to pass the proposed Denver Paid Sick and Safe Time Ordinance, which would require employers to provide paid sick and safe time leave to employees who work in Denver. The ordinance is one of the latest pieces of paid sick time legislation that is making its way to the ballot box by advocates across the country, including the National Partnership for Women & Families.

In 2006, San Francisco became the first city to adopt sick day legislation. Washington D.C. followed suit in 2008, also including paid “safe days” for domestic violence, sexual assault and stalking victims. In 2011, Connecticut became the first state to pass a statewide paid sick leave bill, and Philadelphia also passed similar legislation. Seattle just passed a sick leave ordinance this month, and advocates also are pushing for sick leave laws in New York and Miami.

Key Provisions

Below is a summary of several of the key provisions in Denver’s proposed Paid Sick and Safe Time Ordinance:

• Provides paid sick and safe time leave for all employees within the geographic boundaries of the city and county of Denver, including part-time and temporary employees, who work at least 40 hours a year (federal and state government employees and union members are exempt).
• All Colorado employers that employ eligible workers in the city and county of Denver must comply, regardless of size, but new businesses are exempt during their first year of operation.
• Paid leave would accrue at the rate of one hour for every 30 hours worked.
• Large employers, defined as employers with 10 or more employees, must offer up to 72 hours, or 9 days, of paid leave each calendar year.
• Small employers, defined as those with less than 10 employees, must offer up to 40 hours, or 5 days, of paid leave each calendar year.
• Up to 72 hours, or 9 days, of paid leave may be carried over from year to year.
• Paid leave may be taken after 90 days of employment, and may be taken in as few as one-hour increments.
• No advance notice is required for an employee to take leave.
• No documentation is required until the employee takes three or more consecutive days off.
• Paid leave can be taken for:

An employee’s own mental or physical illness, injury, health condition, need for medical care or treatment, or need for a medical procedure or preventative medical care;

To care for an employee’s family member’s mental or physical illness, injury, health condition, need for medical care or treatment, or need for a medical procedure or preventative medical care;

The closure of the employee’s place of business, or to care for a child whose school or place of care has been closed, due to a public health emergency;

To seek a civil protection order to prevent domestic abuse pursuant to Section 13-14-102, C.R.S.;

To obtain medical care or mental health counseling, or both, for the employee or employee’s children to address physical or psychological injuries from domestic abuse, stalking, sexual assault, or other crime involving domestic violence;

To make the employee’s home secure, or to seek new housing, due to domestic abuse, stalking, sexual assault, or other crime involving domestic violence; and

To seek legal assistance to address issues arising from domestic abuse, stalking, sexual assault, or other crime involving domestic violence, and attend or prepare for court-related proceedings.

• Employers cannot require employees to search for, or provide, a replacement worker to cover the hours missed.
• Employers cannot “take retaliatory personnel action or discriminate” against employees exercising their sick and safe time rights.
• Employers have certain recordkeeping requirements and fines may be imposed for violations.

Unclear and Potentially Troublesome Provisions

Definition of “Family Member” Too Broad

Although seemingly modeled after the San Francisco and Washington, D.C. bills, Denver’s new proposed paid leave ordinance includes a far broader definition of “family member” than any prior bill passed. It includes:

• A person related by blood, marriage or legal adoption, including a child, parent, spouse, sibling, grandparent, or grandchild of the employee;
• A foster child, parent, sibling, grandparent, or grandchild of the employee;
• A child to whom the employee stands in loco parentis or for whom the employee is the legal guardian;
• The employee’s domestic partner;
• The spouse of an employee’s child, parent, sibling, or grandparent;
• A legal guardian of the employee or a person who stood in loco parentis to the employee when he or she was a minor;
• A parent of the employee’s spouse; or
• Any other individual related by blood or affinity whose close relationship is equivalent to a family relationship.

By including spouses of an employee’s child, parent, sibling, or grandparent and any other individual related by “affinity,” the definition of “family member” in the new proposed ordinance encompasses a greater number of individuals, and possible reasons to support paid time off, than that of the federal Family and Medical Leave Act or other similar sick leave ordinances.

Unclear How to Count Number of Employees or Who May Be Eligible

It is unclear how employers will be required to count their number of employees to determine the amount of leave benefits that must be offered. The definition of employer includes all businesses in the state of Colorado. But, the definition of an eligible employee is anyone employed within the geographic boundaries of the city and county of Denver. So, for purposes of determining the amount of leave benefits, will employers be required to count all employees in Colorado, or only those employed within the city and county of Denver? Likewise, if employees need only be employed in the city or county of Denver for 40 hours a year to be eligible, is a worker whose main office is located elsewhere in the state, but who travels to Denver frequently throughout the year for deliveries or to conduct business, eligible for the mandated leave benefits?

No Advance Notice Required

Where other paid sick leave bills expressly authorize employers to require reasonable notice to be given where practicable when an employee’s need for leave arises, Denver’s new proposed ordinance vaguely states that employers “may not impose unreasonable barriers to use of paid sick and safe time.”   An “unreasonable barrier” in one instance could be reasonable under different circumstances, and there is no clear mandate authorizing employers to require advance notice where practicable.

Employers Prohibited From Requesting Documentation

Additionally, where other sick leave bills allow employers to require appropriate documentation to support the leave to prevent abuse, Denver’s new proposed ordinance prohibits employers from requesting any documentation, until after three consecutive days of absence.

Employers Already Offering Generous Leave Benefits Not Necessarily Exempt

Finally, even though the new proposed ordinance attempts to exempt employers that already provide vacation or personal time off (PTO) in an amount equivalent or greater than the mandated nine (or five) days of leave benefits, employers must allow the vacation or PTO “under the same conditions as paid sick and safe time” – meaning that if the other leave benefits require prior notice and/or documentation, this new leave bank must be provided in addition. This is another major difference between Denver’s proposed sick leave ordinance and those passed in San Francisco, Washington, D.C. and Connecticut.

What’s Next

We will closely monitor the results of the November election. If Denver’s Paid Sick and Safe Time Ordinance is passed, we will issue a bulletin providing information on the new law and recommended steps for compliance for Colorado employers.