Colorado labor laws: Sick leave available for bereavement, wildfires

Colorado didn’t see big, sweeping changes this year in its labor laws, at least compared to recent years, like 2020, when the Colorado Healthy Families and Workplace Act and FAMLI Act, which provides up to 12 weeks of paid leave, both passed.

But a few new labor laws were passed and a bunch of smaller tweaks kicked in last month, with more changes coming at the start of next year. For the most part, they broaden the protections that workers already have and rise to the level that employees and employers alike need to be aware of them.

“I didn’t appreciate until it was almost the end of the legislative term, how many changes there had been,” said Kayla Dreyer, a shareholder at the Denver law firm Brownstein Hyatt Farber Schreck.

Brownstein and other Colorado law firms have been posting bulletins and holding seminars to help employers get up to speed. Here are some of the more notable changes that have taken effect or are coming.

Time off for funerals, weather emergencies

Using sick days after the death of a family member, including attending a funeral, was at the discretion of employers in the past. But on Aug. 7, it became an allowed use under revisions made to the Colorado Healthy Families and Workplace Act, which was passed in 2020 in response to the pandemic.

The CHFWA requires employers, regardless of size, to provide paid sick leave to their employees, at the rate of one hour for every 30 hours worked, with a minimum of 48 hours provided per year. Covered uses include the usual items, like an inability to work because of a mental or physical illness, an injury or a health condition, as well as time off to visit a doctor for that condition or to obtain preventative medical care.

The law broadens coverage to include time off to deal with needs that arise because of domestic abuse, sexual assault or criminal harassment, both for the employee directly and family members. Sick leave was also extended to cover required absences during a public health emergency when officials order workplaces and schools closed.

The Marshall fire, which destroyed more than 1,000 homes in Boulder County, helped trigger the other revision besides bereavement leave. Employees can now use paid sick leave if they are forced to evacuate their residences due to wildfires or inclement weather conditions that cause the loss of power, heat or water, or if they need to care for family members because a school or child care facility has unexpectedly closed.

The new allowance represents a nod to the increased number of people working from home, as well as more unsettled weather patterns and more extreme wildfires that climatologists have attributed to climate change.

Harassment complaints must be tracked

Of the labor laws passed this year, the Protecting Opportunities and Workers Rights (POWR) Act, which modifies the Colorado Anti-Discrimination Act and took effect Aug. 7, comes with the largest number of changes, from requirements for training programs to non-disclosure agreements to a requirement for tracking systems to record and retain discrimination complaints.

Harassment no longer needs to be “severe or pervasive” to be considered discrimination or an unfair practice. The conduct challenged needs to be “subjectively offensive” to the person claiming harassment and “objectively offensive” to a reasonable person in the same protected class.

“A single bad incident can be harassment, but it has to be a pretty egregious event,” said Mary Will, a Denver-based partner at the law firm Faegre Drinker, during an online seminar explaining the changes to the state’s labor rules.

Marital status has been added as a protected category when it comes to harassment and discrimination. However, employers are still allowed to dismiss or refuse to hire an employee when a marital relationship could create a conflict of interest.

To obtain what is known as an affirmative defense when a rogue employee triggers a harassment complaint, employers must prove they have a training program in place to prevent harassment, deter future harassers and have policies to protect employees from harassment.

Employees must know the program exists and have details on how to access it. And an employer must take prompt action to investigate or address complaints when they come up.

“Employers are worried because the bar is lowered for asserting certain types of discrimination lawsuits or proving them,” Dreyer said. “My basic advice is to update your anti-discrimination policies.”

The new law voids existing non-disclosure agreements that prohibit employees from disclosing or discussing alleged discriminatory behavior in a workplace unless they apply equally to the employer and employees and they contain a statement that doesn’t limit employees from disclosing underlying facts to immediate family members, attorneys and government agencies in response to a subpoena or as required by law.

One of the biggest changes requires employers to preserve personnel or employment records for at least
five years after a complaint, either written or oral, is received. That could prove an issue for smaller employers who don’t have such systems in place.

Age-related questions on applications prohibited

Asking someone their age might be considered rude socially. But when it comes to job applications, Colorado has made it illegal, even via roundabout ways, such as asking for a transcript of college attendance, under the Job Application Fairness Act, which passed this year.

Starting on July 1, 2024, employers can no longer ask an applicant about their age, date of birth, attendance or graduation dates at schools, and so on. Employers can require copies of certifications and transcripts, but only if they inform applicants that age-related information can be redacted.

The restrictions don’t apply if age limits are set as a condition of a job, such as federal limits that require airline pilots to be under 65 in age. Age-related questions can be asked later on in the hiring process after the initial screening.

The penalties aren’t stiff unless a violation is repeated, and then they can add up fast. A first violation will result in a warning and a requirement of compliance within 15 days from the Colorado Department of Labor and Employment. A second violation comes with a $1,000 fine and a third with a $2,500 fine. Those fines apply per application submitted with any information that violates the law.

The age-related restriction could prove problematic for employers who rely on job boards like Indeed or who take applications directly from LinkedIn, where it is common to list the years of graduation and stints at previous employers, Dreyer said.

Equal pay, equal work: The sequel

Colorado was a pioneer in requiring employers to disclose pay ranges in job postings and inform current employees of an opening under the Equal Pay for Equal Act work, which went into effect at the start of 2021.

Amendments passed this year require that postings contain more detailed information on hourly pay or salary ranges, a general description of benefits and additional compensation, and the date when the application window will close.

After someone is hired, the employer must disclose the name of the selected candidate, that person’s former job title and new job title, as well as how current employees can apply for similar jobs in the future. The disclosures must be made to any employees who will work with the new hire.

In a clarification, postings aren’t required for jobs that reflect a career advancement or a change in an employee’s terms of compensation and benefits or status, said Erik Mosvik, a labor and employment law attorney at Feagre Drinker’s Denver office.

For example, if a part-time worker is automatically offered a full-time position after three months on the job, that transition doesn’t require a job posting. The Colorado Department of Labor and Employment is working on new rules for temporary, interim or acting job opportunities that necessitate an immediate hire.

Employers received some more relaxed rules for remote workers. If a firm is based outside Colorado and has fewer than 15 employees in the state working remotely, posting requirements are reduced.

Other changes made

  • Rules requiring physicians to supervise physician assistants have been loosened, which should result in lower costs for health care providers and patients. It should also make it easier for physician assistants with more than 3,000 hours of experience to operate in rural areas where doctors are often lacking.
  •  Members of the Colorado National Guard and the military reserve units will now receive an equivalent of three weeks of leave for military training or service. The prior limit was 15 days in a year. The new rule, passed in House Bill 23-1045, allows the number of days worked in a week to be multiplied by three. Someone working six days a week in reserve duty would get up to 18 days, while someone serving three days a week would get up to nine days of leave.
  • Language in the federal I-9 form, which establishes the eligibility of workers based on citizenship or immigration status, was streamlined and clarified, effective Aug. 1. New rules also make it easier for employers to verify the I-9 documents that employees have provided remotely.
  • Effective May 1, employers received a 10% reduction in the standard premiums they paid under the Federal Unemployment Tax Act. Employers in Colorado are no longer required to submit premium payment reports, but only wage reports.

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