On November 3, 2020, voters passed Proposition 118, an initiated state statute (that is, a statute passed directly by the voters, rather than through the legislature) which establishes a family and medical leave program that provides up to 16 weeks of paid leave.

Starting on January 1, 2023, each employer in the state must remit a payroll tax for each employee in an amount equal to 0.9% of the employee’s wage to a state fund established to pay for the leave taken by employees under this law. Although the employer is responsible for remitting the tax, the cost of the tax is split 50/50 between the employer and employee. After the first two years, this tax may be increased or adjusted up to a cap of 1.2% of the employee’s wage.

Starting on January 1, 2024, employees who have earned at least $2,500 at their jobs can take family and medical leave under this law. The law ensures that employees who take this leave receive insurance benefits as well as up to $1,100 per week in wages. The pay is tied to the state average weekly wage, so it may increase or decrease year to year. In addition, the employee can take up to 12 weeks of paid leave (plus an extra four weeks for pregnancy and childbirth complications). This leave can be taken intermittently if such leave is already provided for by the employer.

The employee can take this leave for any of the following reasons:

• Caring for their own serious health condition
• Caring for a new child during the first year after the birth or adoption or for foster care of a new child
• Caring for a family member with a serious health condition
• When a family member is on active duty military service or is called for active-duty military service
• When the individual or the individual’s family member is a victim of domestic violence, stalking or sexual assault

Finally, employers cannot retaliate against employees who request or take this leave. If the employee has worked for the employer for at least 180 days, then the employee is entitled to return to the same or similar position after the leave is taken.

Colorado employers should be aware of this new law.

Proposition 118 »

On July 6, 2020, Gov. Polis signed SB 20-212 into law. This statute revises an existing telehealth statute to prohibit carriers from imposing specific requirements or limitations on HIPAA-compliant technologies that a provider uses to deliver telehealth services; imposing a requirement that a patient-provider relationship must exist before providing telehealth services; and imposing any additional certification, location or training requirements on a provider as a condition for reimbursing that provider for providing telehealth services.

The statute also allows for the supervision of home healthcare services via telemedicine or telehealth and requires that any healthcare provided through telemedicine meet the same standards of care as in-person visits.

Finally, the statute also requires that the state reimburse rural health clinics, the federal Indian health service, and federally qualified health centers for providing telehealth or telemedicine services at the same rates as those for face-to-face meetings.

Although this statute affects carriers regulated by the state, employers should be aware of these developments.

SB 20-212 »

In August 2020, the Division of Labor and Employment issued two Interpretive Notices and Formal Opinions (INFOs) describing the terms of the “Healthy Families and Workplace Act” (SB 20-205). INFO #6A covers the statute’s paid leave requirements which will be in effect through December 31, 2020. During this time, employers must provide up to two weeks (or 80 hours) of paid leave paid sick leave to workers who miss work for one of three COVID-19 related reasons as outlined in the statute. INFO #6B covers the statute’s paid leave requirements which will be in effect beginning January 1, 2021. Starting in 2021, employers are only required to provide one hour of paid sick leave for every 30 hours worked, up to 48 hours per year, but the worker can use this leave for a wider range of reasons.

SB20-205 was discussed in the July 21, 2020, edition of Compliance Corner.

Employers with employees in the state should be aware of these Interpretive Notices and Formal Opinions.

Interpretive Notice and Formal Opinion #6A »
Interpretive Notice and Formal Opinion #6B »

Effective July 18, 2020, the Division of Insurance promulgated Emergency Regulation 20-E-09, which replaces and extends the coverage and cost-sharing requirements for commercial insurers related to claims arising from the testing and treatment of COVID-19. These requirements were established in Emergency Regulation 20-E-01, which was discussed in the March 31, 2020, edition of Compliance Corner.

This regulation applies to insurers, but employers should be aware of the extension.

Emergency Regulation 20-E-09 »

On July 14, 2020, Gov. Polis signed SB20-205 into law. The legislation creates three categories of leave: 1) it expands the Families First Coronavirus Response Act (FFCRA) emergency paid sick leave to apply to employers who employ 500 or more employees; 2) it creates paid sick and safe leave for Colorado employees; and 3) it creates public health emergency leave for Colorado employees.

FFCRA’s emergency paid sick leave provisions apply to employers with fewer than 500 employees. The legislation expands the application of these provisions to employers with 500 or more employees. However, it does not provide tax credits to employers who provide leave under the law and is only effective until December 30, 2020.

The legislation requires employers to provide one hour of paid sick and safe leave for every 30 hours a Colorado employee works. An employee may earn up to 48 hours per year in this manner and unused hours can carry forward into the next year. An employer can offer this leave “up front” and employers that already have policies which provide this leave plus public health emergency leave at least as generous as that provided by the legislation may be exempt. Employees can use this leave to deal with physical or mental illness with themselves or their family members, as well as to deal with issues relating to domestic abuse, sexual assault, or harassment. This leave applies to employers with 16 or more employees beginning on January 1, 2021, and then will apply to all employers on January 1, 2022.

Finally the legislation requires employers to give employees up to 80 hours of leave in the event of a public health emergency, such as the COVID-19 pandemic. The paid sick and safety leave established by this legislation can be applied toward this leave, and employees can access it for up to four weeks after the emergency is officially declared over. The employee can use this leave to take care of himself or herself or a family member who is affected by the cause of the emergency, and to take care of a child who does not have access to child care as a result of the emergency. Employees must notify their employers of the need to take this leave as soon as practicable.

The legislation also requires employers to post notices regarding employees’ rights to this leave, and employers are prohibited from requiring employees to waive their access to this leave and from finding replacement workers when they take the leave. Employees will have a private cause of action to enforce this legislation in civil court, although there is an administrative requirement to report alleged violations to the state’s Department of Labor and Employment and allow that agency to resolve the matter first.

Employers with employees in the state should be aware of this new legislation. If the governor signs it into law, regulations and model notices will soon follow, so employers should keep their eyes open for those as well.

SB20-205 »

On April 30, 2020, the Division of Insurance issued Bulletin No. B-4.108, which covers all carriers offering individual, small group and large group health benefit plans, and managed care plans, including health-savings-account (HSA)-qualified health benefit plans, and grandfathered health benefit plans that are subject to the insurance laws of Colorado. TPAs for self-insured plans are also encouraged to read and follow the requirements in the bulletin.

The bulletin clarifies the testing, diagnosis and screening for COVID-19 and insurers’ obligations under Emergency Regulation 20-E-01 (as discussed in the March 31, 2020, edition of Compliance Corner). It requires carriers to use both in-network and out-of-network labs in order to make sure that there is enough testing for COVID-19 to meet the demand, with no cost sharing. In addition, carriers shall cover cost sharing where licensed health care providers are administering COVID-19 tests and are prohibited from requiring providers to collect cost shares. This testing shall be covered when the testing is conducted in an in-network provider office setting, an in-network urgent care center setting, an emergency room setting, and nontraditional care settings where licensed health care providers are administering the testing.

The bulletin reminds carriers that the emergency regulation requires them to cover without cost sharing any test approved for use in detecting or diagnosing of COVID-19 in accordance with the CARES Act and subsequent federal guidance, including serological testing and any other tests a provider determines appropriate when determining the need for COVID-19 diagnostic testing, such as influenza or pneumonia testing.

The regulation is primarily directed at carriers. However, employers should also be aware of these developments.

Bulletin No. B-4.108 »

The Division of Insurance promulgated Emergency Regulation 20-E-07, effective April 18, 2020, that requires carriers that issue plans regulated by the state to pay out-of-network providers for emergency services rendered for treatment of COVID-19 and suspends prior authorization requirements for emergency services.

The regulation is primarily directed at insurers. However, employers should also be aware of these developments.

Emergency Regulation 20-E-07 »

On April 3, 2020, the Commissioner adopted Emergency Regulation 20-E-06, which extends a special enrollment period (SEP) for residents of Colorado who have either lost their health insurance or who anticipate such a loss as a result of the COVID-19 outbreak. The extended SEP runs from April 4, 2020, through April 30, 2020 (extended from previous emergency rule deadline of April 3, 2020). This SEP was originally established by emergency regulation 20-E-02 issued by the Division of Insurance.

Employers with employees located in Colorado should be aware of this option in the event those employees experience a reduction in hours or express an intent to enroll in a plan on the exchange as a result of business decisions made in response to the COVID-19 outbreak. The SEP is also an option for employees whose jobs are terminated and health coverage is lost during this time.

Emergency Rule 20-E-06 »

On April 3, 2020, the Commissioner of Insurance promulgated Regulation 20-E-05 requiring carriers to reimburse providers for the provision of telehealth services during the COVID-19 nationwide public health emergency. The regulation requires insurers to reimburse providers for telehealth service at rates that are at least the same as those paid for the in-person equivalent and that behavioral health services provided via telehealth have parity with medical services. It prohibits carriers from imposing limits on technologies to telehealth, and from imposing additional certification and training requirements. The regulation also mandates coverage of telehealth by out-of-network providers if they provide “medically necessary” services.

The rule is primarily directed at insurers. However, employers should also be aware of these developments.

Emergency Rule 20-E-05 »

On April 7, 2020, the Division of Insurance issued Bulletin 4.106 to assist hospitals in anticipation of a surge in COVID-19 cases by encouraging the provision of health care services to those who can be treated at home.

To that end, the bulletin reminds carriers of their obligations to provide coverage for certain home health care services, including the provision of durable medical equipment and medications if the health care provider deems such things medically necessary. The bulletin also requests that carriers eliminate any prior authorization requirements for these products and services, and otherwise expedite requests for them.

The bulletin is primarily directed at insurers. However, employers should also be aware of these developments.

Bulletin B-4.106 »