Mark Wiletsky
It’s a brave new world for Colorado employers. The state now requires paid sick leave for employees, and it established unique requirements for job postings and promotional opportunities. In December, the Colorado Department of Labor and Employment (CDLE) amended its rules and issued new guidance with respect to the laws. The amended rules and guidance provide important information for all employers about how the CDLE interprets and will enforce the new laws.
Equal Pay for Equal Work Act (EPEWA)
The EPEWA became effective January 1, 2021. Among other things, it requires employers to pay men and women equally for the same or substantially similar work, subject to limited exceptions. The EPEWA also contains significant requirements with respect to job postings and promotional opportunities:
- Job postings must contain salary and benefits information; and
- Promotional opportunities must be announced to all Colorado employees on the same calendar day and before the decision is made.
In December, the CDLE issued Interpretive Notice and Formal Opinion (INFO) #9, which provided additional guidance on job postings and promotional opportunities.
Job postings. INFO #9 clarified that if a 2020 job posting extends past January 1, 2021, the CDLE won’t consider it to be subject to the EPEWA requirements unless it remains posted on or after February 1, 2021.
INFO #9 also described the benefits you must cover in a job posting, including “health care, retirement benefits, paid days off, and any tax-reportable benefits.” You don’t need to provide details about the benefits, such as health insurance cost or coverage terms, or include “minor perks,” such as an on-site gym or employee discounts. And, importantly, the information may be included via a link in electronic postings.
The guidance also confirmed you may pay over or under a posted pay range, so long as you can establish you genuinely believed the range was accurate at the time of posting. Further, job postings aren’t required except as necessary to inform employees about promotional opportunities.
Promotional opportunities. Perhaps most significant, INFO #9 provides new guidance on posting promotional opportunities. You must notify all current employees in Colorado, whether qualified or not, of any promotional opportunity sufficiently in advance of a decision to allow them to apply.
INFO #9 broadly defines “promotional opportunity” as including an employee’s change in title or a “promotion along a fixed, in-line career trajectory.” In other words, before you change an employee’s title from marketing manager to marketing supervisor or advance an individual from Engineer I to Engineer II, you must post the “promotional opportunity” for all employees.
One exception: For certain in-line and other promotions that occur regularly, i.e., at least once per month, you may provide “a single notice” about the opportunities instead of serial notices for each opening. You may send the single heads-up directly to employees in a periodic notice (at least monthly) or in a static notice, such as an intranet posting, but it must be accessible to all employees and updated appropriately.
Public health emergency (PHE) paid sick leave
On December 23, 2020, the CDLE adopted emergency amendments to its rules and issued INFO #6C concerning paid sick leave under the Healthy Families and Workplaces Act (HFWA) of 2020. As a reminder, the HFWA mandates (1) paid sick leave for health and safety reasons and (2) supplemental paid sick leave of up to 80 hours for full-time employees during a declared public health emergency such as a pandemic.
The statute and rules weren’t entirely clear about whether supplemental PHE leave was required as of January 1, 2021, because the current public health emergency began in 2020. The emergency amendments and INFO #6C clarify that Colorado employees are entitled to PHE supplemental paid sick leave as of January 1, 2021.
The PHE supplemental paid sick leave in 2021 is in addition to any COVID-19-related leave provided in 2020. The PHE leave of up to 80 hours, however, isn’t refreshed or expanded, even if the pandemic stretches into next year (though hopefully that won’t occur).
Conclusion
The EPEWA and the HFWA represent significant changes to Colorado law. As a result, many employers are still struggling to ensure they’re complying with the new requirements. Until we receive more guidance from the courts, keep an eye out for additional changes—in the form of temporary or emergency rule amendments or interpretive guidance—from the CDLE.
