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CDLE issues revised INFO #6A

The CDLE has issued a revised INFO #6A, which is its summary explaining the aspects of Colorado’s new sick leave law taking effect 1/1/2021. The CDLE summarized its changes to INFO #6A, as follows:

(1) Pg. 1: In the list of 3 situations that qualify for leave, a non-substantive wording change to category #3 (leave to care for another person) aims to make clearer that it applies when the person being cared for meets the category #2 definition (being ordered/instructed to quarantine/isolate, due to a risk of COVID-19, by a government agent or health provider).

(2) Pg. 1, footnote 3: As to what is and is not a “bonus” excluded from the regular pay rate that applies to paid leave in 2020, footnote 3 has been added to cite, and explain the answer in, the federal rule that applies to 2020 leave.

(3) Pg. 2: An “Example” of the CBA exemption was deleted because stakeholders have expressed differing views of the exemption that warrant consideration before the Division decides whether to adopt any interpretation.

(4) Pg. 3: An elaboration to the paragraph on how “Policies by any name can comply” cites and explains the federal rule that applies to 2020 leave, which draws a key distinction between employer policies that existed prior to April 1, 2020, and those adopted after that date.

(5) Pg. 2-3: Non-substantive citation edits — without changing any wording, numerical citations were added to the federal rules on what documentation (29 C.F.R. 826.100) and notice (29 C.F.R. 826.90) employees can be asked to provide, and numbers were corrected in two HFWA citations (to the 8-13.3-416 provision against waiver of rights, and the 8-13.3-418 provision recognizing employer rights against employee misconduct).

Of these, item 2 may be of particular interest, in that the CDLE revised INFO 6A to provide that, while on paid leave, sick leave must include payment of any “non-discretionary pay based on pre-determined criteria or formulae (e.g., by production or accuracy), whether called a piece rate, bonus, incentive, or other name.” In other words, in contrast what had seemed clear language in the new statute and in conflict with its prior INFO #6A, the CDLE has — without undertaking rulemaking — decided to re-interpret these new laws as excluding from required sick leave only “discretionary” bonuses.