Colorado Employer Compliance Update

We've been anticipating another mid-year compliance update as this seems to be the norm for Colorado legislation now. We aim to keep the small business community informed of changes to the employment law landscape that directly impacts you. It's a long one so join us for the journey and we'll walk you through what you need to know!

Mid-Year Compliance Update Summary

Now

• CO Military Leave Clarification
• FED Pregnant Workers Fairness Act
• CO Unemployment Insurance Premiums

Soon

• CO Protecting Opportunities and Workers Rights (POWR) 8/7/2023 
• CO Bereavement Leave Through HFWA 8/7/2023
• CO Workers Comp Updates 8/7/2023

Later

•  CO FAMLI Benefit Calculation Update 1/1/2024 
• CO Equal Pay For Equal Work Act 1/1/2024 
• CO Application Question Restrictions 7/1/2024

NOW

Military Leave Clarification

    HB 23-1045 This is an expansion from the already required USERRA Military Leave. CO private and public employers are required to provide a leave of absence for the equivalent of 3 weeks. This may be unpaid or accrued paid leave during the absence for military training or to engage in active service in the Colorado National Guard.

Action To Take: Update your USERRA handbook policy and practices to include this expanded leave qualifier.

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Pregnant Workers Fairness Act

     This one may or may not be a "gimme." Back in 2016, Colorado already implemented our own Pregnant Workers Fairness Act requiring employers to consider reasonable accommodations for pregnant workers such as longer or additional break periods (water, restrooms, etc - you get the idea), lifting limitations, modified work schedules, equipment, or seating. Much of which is similar under the ADA and the Pregnancy Discrimination Act. Federal law has now adopted similar requirements as a new standard for all states.

Action To Take: If you don't already have practices and policies in place for pregnant employees, evaluate and implement reasonable accommodations to meet compliance and plan for the future with your employees.

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Unemployment Insurance Premiums

    SB 23-232 reduced employer premium rates by 10% for all rates in the standard schedule and:

• Shifts the requirements from providing premium payment reports to filing wage reports instead.
• "Additionally, the bill creates a schedule for the support surcharge rate (schedule), which is used to establish contributions to the employment support fund, to the employment and training technology fund, and to the benefit recovery fund.
• The new schedule uses the same methodology as is used in calculating an employer's percent of excess, which is the percentage resulting from the calculation of an employer's excess of premiums paid over benefits charged, divided by the average chargeable payroll."
• The cap for the employment support fund was raised from $17 million to $32.5 million for the next state fiscal year which supports our workforce development programs including the worker training funding you can apply for through PPWFC.org when it is open throughout the year.*  

Action To Take: You may have noticed your rates decreased and the addition of the surcharge and have likely already been prompted to submit wage reports in lieu of premium payment reports. 

SOON

POWR

Harassment:

The POWR Act redefined criteria for harassment claims in Colorado reducing the burden of proof for employees. Harassment no longer needs to be considered "pervasive or severe" for a viable harassment claim, or to constitute a discriminatory or unfair practice.

• Employer Limits on Affirmative Defense
  • In cases of an employee proving harassment by a supervisor, an employer may only assert affirmative defense if:
    • The employer has established a program designed to reasonably prevent harassment, deter future harassers, and protect employees from harassment.
    • The employer must both “take prompt, reasonable action to investigate or address alleged discriminatory or unfair employment practices” and “take prompt, reasonable remedial actions, when warranted, in response to complaints of discriminatory or unfair employment practices.”
    • The employer has communicated the existence and details of the program to both its supervisory and nonsupervisory employees; and 
    • The employee has unreasonably failed to take advantage of the employer's program
• Action To Take: Establish a Harassment Prevention program, train your leaders and employees on prevention, how to report or address a complaint, and have a plan to address complaints with an outside investigator (If you haven't already.) Not sure where to start? HR Branches provides on-site or on-demand training and can help you every step of the way.

 Non-Disclosure Agreements:

• The bill states a non-disclosure agreement entered into on or after the effective date is not enforceable and cannot even simply be presented to an employee or prospective employee if the contents prohibit or could be considered punitive for disclosing any alleged discriminatory or unfair employment practice. Doing so, employers face an immediate and significant risk of litigation, fines, and penalties for each offense (per policy/employee/prospective employee.)
• Action To Take: Update NDA agreements/policies. We highly recommend contracting a qualified attorney for these agreements to ensure you aren't opening your business to risk with its contents or missing critical aspects unique to your business.

 Colorado Discrimination Act (CADA):

• Marital Status is now a protected class under CADA (Colorado Anti-Discrimination Act). What does this mean? Employers cannot take adverse action against an employee related to their marital status. Where you want to proceed cautiously is conflicts of interest such as one spouse supervising the other (in regards to employees, not business owners.)
• Disability Discrimination criteria has been amended to remove the "impact to the job" criteria previously under CADA. It is not a discriminatory or an unfair employment practice for an employment agency to refuse to list and properly classify for employment or to refuse to refer an individual for employment in a known available job for which the individual is otherwise qualified if there is no reasonable accommodation that the employer can make with regard to the disability that would allow the individual to satisfy the essential functions of the job and the disability actually disqualifies the applicant from the job.
• Action To Take: Review current policies, procedures, and practices for compliance conflicts. Remove high-risk questions from your hiring/interview process, audit and ensure your employment practices don't create discriminatory practices.

Record Keeping: 

• Employers must maintain personnel or employment records for a minimum of 5 years with regard to documentation or verbal complaints of discriminatory or unfair employment practices.
• Records are also defined as "requests for accommodation; employee complaints of discriminatory or unfair employment practices, whether written or oral; application forms submitted by applicants for employment; other records related to hiring, promotion, demotion, transfer, layoff, termination, rates of pay or other terms of compensation, and selection for training or apprenticeship; and records of training provided to or facilitated for employees." 
• Employers must keep these confidential records separate (we recommend an Employee Relations or "E.R." file); and
• Must document the date of the complaint, the identity of the complaining party (if known), the identity of the alleged perpetrator, and the substance of the complaint.
• Action To Take: Implement documentation procedures to ensure compliance with these new requirements.

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Bereavement/Disaster Leave Through HFWA Paid Sick Leave

  Effective August 7th, SB 23-017 expanded qualifying events under paid sick leave to include:

• to grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member;
• to care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected events; or
• to evacuate the employee’s place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected events.
• Action To Take:  Update HFWA sick time policies to reflect these changes.

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Workers Comp

    HB 23-1076 updates workers' compensation laws in Colorado for the following:

•  Section 1 of the bill increases the limit on medical impairment benefits based on mental impairment from 12 weeks to 36 weeks.
• Section 2 removes language authorizing an employee to petition the division of workers' compensation in the Department of Labor and Employment (division) prior to receiving a replacement of any artificial member, glasses, hearing aid, brace, or other external prosthetic device, including dentures.
• Section 3 allows an employee to request a hearing when the employee's temporary total disability benefits end based on an attending physician's written release to return to regular employment.
• Section 4 specifies that when a physician recommends medical benefits after maximum medical improvement, the benefits admitted by the insurer or self-insured employer are not limited to any specific medical treatment.
• Action To Take: Update worker's compensation procedures and correlating policies to meet compliance requirements.

LATER

FAMLI

     In SB 23-046, the CDLE has clarified how they'll calculate employees' weekly benefit amount starting January 1, 2024. Instead of just looking at current job earnings, they'll consider employees' average weekly wage, including earnings from previous jobs within the base period. This means some folks might see higher benefit calculations when they take leave. We will likely see more amendments and clarification in Q4 2023 and throughout 2024.

Colorado Equal Pay For Equal Work Act  (CEPEWA)

     SB 23-105 If you remember, this amendment expanded on the transparency of compensation packages for job postings, communication for promotional opportunities, and many more administrative aspects required of employers. This bill will clarify and expand a bit more.

Anticipated Hiring Date 

• The CEPEWA requires employers to disclose the compensation range for each role along with bonuses, benefits, and anything else considered part of the comp package. As of 2024, employers will also be required to provide "the date by which the employer anticipates the application window closing in the notification of each job opportunity."

Career Progression Promotions

The requirement for promotional opportunities to be communicated and posted internally for a reasonable amount of time now excludes career progression promotions; however, for positions with automatic promotion opportunities (say you have Project Engineers automatically advance to Project Engineer II's after 1 year or meeting certain criteria) employers are required to "Disclose and make available to all eligible employees the requirements for career progression, in addition to each position's terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement."

Remote Employees

• Until 7/1/2029 Employers with less than 15 remote employees and whose business is physically located outside of Colorado, only need to provide notice for remote job opportunities. 

Employee Notice Requirement

• Within 30 calendar days after a candidate begins working in the position, employers will be required to notify employees who will regularly work with the candidate and disclose (1) the name of the selected candidate; (2) the selected candidate’s former job title (if an internal promotion); (3) the selected candidate’s new job title; and (4) how employees can apply for similar jobs in the future and who to contact to express interest.

Statute of Limitations

• The bill extends the statute of limitations for violation claims from the previous 3 years to 6 years and significant cost for non-compliance such as backpay, civil action, fines and penalties etc. for each violation. 

Action To Take:  Begin planning for these additional communication requirements and make them a part of your hiring practices to avoid non-compliance risks. If you don't have a wage scale and career paths for your organization, this is a good place to start (we can help with that.) Concerned how these changes will affect your employees or culture? Let's talk it through!

Age-Related Application Questions

     SB 23-058 On July 1, 2024 Employers will be prohibited from requesting or requiring an individual to include the individual's age, date of birth, or dates of attendance at or date of graduation from an educational institution on an initial employment application. For transcripts, certifications, or additional application materials, employers must notify the individual they may redact age-identifying information.

A Bona Fide Occupational Qualification (BFOQ), which allows employers to request such information, is still compliant as long as it meets requirements with federal or local law.

Action To Take:  Asking for (non-bona-fide) age-identifying information is just poor practice. Remove this from your application/hiring practices and cross it off your list now.

 WHEW! 

Never thought you'd see the end of this update? Us either! These topics can seem thick in the weeds with an overload of information. At HR Branches, we know what keeps you up at night. If anything here that makes your heart race, give us a call! We're here to support you every step of the way.

Contact HR Branches at 719-244-9640 for questions on how to implement these changes in your unique business or join our upcoming webinar by registering here:

HR Branches Employer Compliance Update