Category Archives: Colorado

June 17, 2021

10th Circuit Decision May Affect Work-From-Home Requests After Pandemic Ends

Mark Wiletsky

As COVID-19 vaccinations increase and states ease pandemic-related restrictions, many employers are beginning to plan for employees’ to return to the office. But not all workers may want to return, and some might ask to work remotely because of ongoing concerns about the virus in light of underlying health conditions or simply a fear of becoming infected. It remains to be seen how courts will address the issues under the Americans with Disabilities Act (ADA) and state law, but the U.S. 10th Circuit Court of Appeals (which covers Colorado employers) recently provided useful guidance in a case addressing a prepandemic accommodation issue.

Facts

Joan Unrein worked at the Colorado Plains Medical Center as a clinical dietitian. At some point, she became legally blind. The hospital accommodated her blindness at work with special magnifying equipment, but her transportation issues were more problematic.

Unrein, who lived about 60 miles from the hospital, couldn’t drive herself to work or secure a ride service or public transportation, so she had to rely on friends and family. As a result, her ability to get to and from work was inconsistent, leading her to request a flexible schedule. Read more >>

June 15, 2021

CO Clarifies Employers’ Obligation to Provide Public Health Emergency Leave in 2021

by Laurie Rogers

Laurie Rogers

In late 2020, the Colorado Department of Labor and Employment (CDLE) issued guidance confirming the COVID-19 pandemic had triggered the Healthy Families and Workplaces Act’s (HFWA) provision entitling all employees to up to 80 hours of supplemental public health emergency leave in 2021 (see CDLE Info Sheet # 6C). While the guidance alerted employers to their obligation to provide the benefit, it left several unanswered questions about the amount of emergency leave part-time and new employees are entitled to receive under the HFWA. On February 23, 2021, the department issued revisions to the wage protection rules answering the questions (see 7 CCR 1103-7).

General requirements under the HFWA

As of January 1, 2021, the HFWA requires most employers with 16 or more employees to let them accrue up to 48 hours of paid sick and safe leave annually. They may take the leave for various health- and safety-related needs. On January 1, 2022, all covered employers, including those with fewer than 16 employees, will have to provide paid sick and safe leave to their employees (for more details, see CDLE Info Sheet # 6B). Read more >>

March 22, 2021

New CO Guidance Concerning Paid Sick Leave and Job Posting Requirements

by Mark Wiletsky

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. Read more >>

December 15, 2020

Colorado’s Equal Pay for Equal Work Act effective January 2021

by Steven Gutierrez

Steven Gutierrez

Among the most significant employment-related bills passed by the Colorado General Assembly during its 2019 legislative session was Colorado’s new Equal Pay for Equal Work Act (EPEWA). The Act, which will go into effect January 1, 2021, for all public and private employers in Colorado, imposes equal pay obligations extending beyond those of the federal Equal Pay Act (EPA). The EPEWA is intended to “ensure that employees with similar job duties are paid the same wage rate regardless of sex” and reflects the Colorado General Assembly’s response to findings that the wage gap between men and women has long persisted even after the federal EPA attempted to eliminate it nearly 60 years ago.

Why was the EPEWA enacted?
Many employee organizations have long contended that despite passage of the federal EPA in 1963—which was intended to remedy pay disparities based on sex a year before the federal Civil Rights Act of 1964—unlawful pay disparities have nonetheless persisted. Many have attributed the persistence to the federal EPA’s catch-all provision permitting wage disparities based on any “factors other than sex,” which advocates contend is too vague and permits wage disparities for too many reasons. Read more >>

September 24, 2020

Colorado Court of Appeals: Terms of Employer’s Vacation Policy Control Whether Accrued, Unused Vacation Time Must Be Paid Out at Separation

By Steven Gutierrez and Jeremy Merkelson, Holland & Hart LLP

Steve Gutierrez

The Colorado Court of Appeals issued a very favorable decision to employers today in a case litigated by Steve Gutierrez and Brad Williams of Holland & Hart, LLP. The case addressed an unsettled question under the Colorado Wage Claim Act (“CWCA”)—namely, whether accrued, unused vacation time must be paid out at separation of employment where an employer’s vacation policy states that it will not be. The Court of Appeals held that such time need not be paid out at separation, echoing a similar decision by the Court of Appeals in a similar case last year. The decision issued today—Blount Inc. v. Colorado Department of Labor and Employment, Division of Labor Standards and Statistics—adds fodder to a judicial debate over payout of vacation time that is likely to be resolved by the Colorado Supreme Court in 2021.

The CWCA requires that any unpaid wages and compensation must be paid to employees within specific time periods after their separation of employment. Amongst the wages and compensation that must be paid out is “vacation pay earned and determinable in accordance with the terms of any agreement between the employer and employee.” Colorado law has long been unsettled regarding whether this provision requires payout of any vacation time after it is accrued (e.g., on the theory that the vacation time is then “earned” and cannot lawfully be denied based on a separate section of the CWCA) or whether the terms of an employer’s specific vacation policy determine whether or not vacation time must be paid out at separation of employment (and if so, under what circumstances). The Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (the “Division”), has long taken the position that vacation time once “earned” must always be paid out at separation, and that vacation policies providing otherwise are illegal. However, the Division has also issued inconsistent guidance and administrative decisions on wage claims that call this position into question—including inconsistent guidance on whether “use-it-or-lose-it” vacation policies are legal under its interpretation of the CWCA. Read more >>

September 1, 2020

Colorado Legislature Passes Paid Sick Leave, Other Bills Affecting Employers

by Mark Wiletsky, Holland & Hart, LLP

Mark Wiletsky

In an extraordinary legislative session interrupted by the COVID-19 pandemic—which led to a Colorado Supreme Court ruling approving lawmakers’ right to reconvene after initially adjourning in late March 2020, despite a constitutional provision limiting regular sessions to “one hundred and twenty calendar days”—the Colorado General Assembly passed a number of important bills affecting employers. On July 15, 2020, Governor Jared Polis signed the Healthy Families and Workplaces Act (HFWA), which prescribes new paid sick leave obligations going into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many people they employ) on January 1, 2022. The HFWA also mandates that all covered employers in Colorado provide paid sick leave for certain COVID-19-related reasons immediately and through the end of 2020. Read on for more details about the HFWA and other important legislative developments. Read more >>

July 14, 2020

Governor Polis Signs New Paid Sick Leave Law for All Colorado Employees

By Steve Gutierrez, Holland & Hart LLP

Steven Gutierrez

On July 14, 2020, Colorado Governor Jared Polis signed into law the Healthy Family and Workplaces Act passed by the Colorado General Assembly during its recently concluded legislative session in June 2020. The new law mandates that nearly all employees working for public and private employers in Colorado must begin accruing at least one hour of paid sick leave for every 30 hours worked, up to 48 hours total, which balance shall carryover year-to-year subject to the limit. This requirement goes into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many employees they employ) on January 1, 2022.

The law permits use of paid sick leave hours, as soon as they accrue, for numerous reasons ranging from an employee’s own illnesses, to an employee’s need to care for family members, to leave associated with certain domestic abuse or sexual assault issues, to ordered closures of an employee’s place of business, or of a school or childcare facility, if the employee needs to care for a child. Read more >>

July 10, 2020

Traditional ‘Use-It-Or-Lose-It’ Vacation Policies Barred In Colorado—At Least For Now

by Laurie Rogers, Holland & Hart LLP

Laurie Rogers

Under a recent regulation interpreting the Colorado Wage Claim Act (CWCA), Colorado employers are now barred from having policies that permit accrued vacation time to be forfeited if not used within a particular time frame. Instead, under the new regulation, they must compensate employees for all accrued but unused vacation at the time of separation and are otherwise prohibited from having policies requiring the forfeiture of accrued but unused vacation time.

CWCA’s ‘use-it-or-lose-it’ conundrum

The legality of use-it-or-lose-it vacation policies under the CWCA has long been a subject of debate. Section 8-4- 101(14) of the Act defines “wages” and “compensation”— which must be paid out at separation of employment— to include “vacation pay earned in accordance with the terms of any agreement.” The section further provides that if “an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.” Read more >>

April 2, 2020

10th Circuit Upholds Hospital’s Rejection of Applicant Under ADA

Mark Wiletsky

by Mark Wiletsky, Holland & Hart LLP

The rules surrounding medical examinations under the Americans with Disabilities Act (ADA) can be tricky. The U.S. 10th Circuit Court of Appeals (whose rulings apply to all Colorado, New Mexico, Utah, and Wyoming employers) recently analyzed the rules in a case involving an employer’s decision to rescind a job offer based on a postoffer, preemployment medical examination. The lessons learned are helpful for all employers that use or consider medical examinations for applicants or employees.

Facts

Elena Sumler applied for a job as a sonographer with the University of Colorado Hospital Authority. Sonographers use their technical skills to obtain and analyze ultrasound images.

The hospital offered Sumler the position, contingent on a medical examination. As part of the medical exam process, she disclosed that she suffers from fibromyalgia and was taking medications, including two narcotic pain medications. She asserted, however, that she wasn’t disabled and had no restrictions preventing her from performing the essential job functions. Read more >>

January 27, 2020

CO Department of Labor and Employment Adopts New Wage and Hour Rules

Read our article about the most recent updates to the COMPS order.

By Brad Williams

Brad Williams

What’s new?

On Wednesday, January 22, 2020, the Colorado Department of Labor and Employment (“CDLE”) adopted the Colorado Overtime and Minimum Pay Standards Order (“COMPS Order”) #36, which replaces Colorado Minimum Wage Order #35. The adopted rules will go into effect on March 16, 2020.

The two most significant changes between Minimum Wage Order #35 and the new COMPS Order that will impact Colorado employers are:

The new COMPS Order applies to all Colorado employers, unless specifically exempted; and
The new order raises the minimum salary threshold required for employees to qualify for exemptions from overtime protections under Colorado law.

The new COMPS Order also makes numerous additional—albeit less significant—changes and clarifications to Colorado wage and hour rules. These include changes and clarifications relating to pre- and post-work time, tips, rest periods, and other issues. Read more >>