A little bit of context first: I work for a local business. I'd consider it a small business, because we are the only store of our name. The owners of our store live in the same neighborhood. But they also own a local restaurant chain with 7 or 8 locations, which is relevant because they're large enough to have an accounting/catering office that handles things a corporate division would, like payroll, hr, etc. I'm not sure how many employees work in that office, but I'd guess probably around 5 or less. Only 12 employees work at my shop, and I'm a manager. Suffice to say, it's not a huge company with corporate infrastructure, but it's not so small that I'm dealing directly with the owners (though I've met them enough that both of them and their wives know me by name).
Okay, on to the story. As the title says, I tested positive for COVID Monday night. Informed my GM, work group chat, got my shifts this week covered, all that. Now, I live in Colorado which passed legislation a few years ago mandating every company give their employees paid sick leave for any illness or injury, up to 48 hours per year which is earned at increments of 1 hour per 30 hours worked. I've worked for this company long enough that I've been sitting at the full 48 hours for a year or two. This is referred to as “Accrued Sick Leave,” and that's how I'll be referring to it in the rest of this post.
With the onset of COVID, Colorado also passed a law that requires employers to provide a separate bank of sick leave specifically for COVID (it did include other respiratory illnesses for a while, but recently changed to only cover missed work directly related to COVID). This is called Public Health Emergency (PHE) leave. It is in effect at any time there is a declared Public Health Emergency in Colorado, which there currently is and has been since the start of COVID. It's not indefinite, it is declared for a determined amount of time, and then renewed by executive order. The most recent executive order renewing it was Jan. 8th 2023 and lasts 30 days. The Colorado Department of Labor and Employment lays out the rules regarding PHE leave, and says that PHE leave is mandated during any active public health emergency, and continues on for 4 months from the expiration of the emergency declaration. Meaning any worker who must miss work due to COVID is guaranteed up to 80 hours of PHE leave until at least May 2023 (this is specifically laid out on the CDLE website).
PHE leave is a separate entity from Accrued Sick Leave. The CDLE specifically differentiates the two, and lays out the stipulations and regulations regarding each. So when I tested positive for COVID, I told my GM I'd be using PHE leave and to make sure that my accrued sick leave isn't used. She contacted the person in charge of hr/payroll at our company, and they told her that company policy is to use Accrued Sick Leave first, and PHE leave to cover the remainder if someone needs more time than they've earned in Accrued Sick Leave, or if they are new enough to have earned none at all.
Now, I know that's not how it's supposed to work. I told my GM I would sort it out myself and to give me the email of the person who told her this, and that's who I've been corresponding with since. I sent her an email telling her that I won't be using my Accrued Sick Leave, and that I'll be using PHE leave. She told me the same thing, company policy. I told her that I've read the laws regarding this, and that it specifically says “[…] employees are allowed to use PHE-related supplemental leave for any of the above PHE conditions, before using accrued leave, if they qualify for both kinds of leave.” I told her that I would indeed like to use my PHE leave before touching my accrued leave, and that I would be contacting the CDLE if this request was denied. She called the Labor board herself, and they referred her to the same INFO sheet that I got my information from, and she parsed bits of information that seemed to support the company policy, but I guess ignored the specific paragraph that I quoted above. By the time she'd emailed me back, the call center for Labor Law questions/complaints had closed.
So today I called the CDLE, and spoke with an agent. I explained the situation, and read back to him the part detailing an employee's right to use PHE leave before using their earned Accrued Sick Leave. He told me that I'm exactly right in my interpretation, and when I told him my situation and what she had said, he literally said, “Wow, that's rich. People love to only see what they want to see. I refer people to that document all the time, and that's not how it's meant to be used.” He gave me the email that I should request clarification from (to have it in writing, since the hr lady told me that if the CDLE agreed with me I'd need to have it in writing so they can amend the company policy). I sent them an email and should receive one within the next 48 hours.
My correspondence with the hr/payroll employee from my company was about 6 emails, just back and forth with her pointing to a different part of the same INFO sheet claiming it supported the companies position, and me referring to the one paragraph that made it clear that im entitled to PHE leave without using my Accrued Sick Leave. She even asked me why I'd rather use PHE leave over the sick leave I've earned, and I told her exactly why, which was the opposite of the reason the company policy is to use Accrued Sick Leave first – so that if I need my Accrued Leave down the road for something that isn't covered by PHE leave, I would have my full amount.
I'll update this post once I have a response from the CDLE and have sent it over to my company and hear back from them as well.