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2023 Colorado Employment-Law Developments: More Fireworks than the Super Bowl Halftime

    February 16, 2023
    By Michael Santo, COSHRM Legislative Director and Managing Attorney at Bechtel & Santo

    The first six weeks in the Colorado legislative session has seen the Colorado legislature propose a plethora of employment bills. Additionally, the Biden administration made a recent announcement about putting an end to the COVID public health emergency that has a major impact on all Colorado employers. In short, 2023 continues to be full of fireworks for employment-law matters. 

    Declared Public Health Emergency Ends May 11, 2023. What does this mean for Colorado Employers? On January 30, 2023, President Biden announced that the public health emergency related to COVID-19 will expire on May 11, 2023. For Colorado employers, this announcement means that the Public Health Emergency Leave (“PHEL”) should come to an end as well. As you know, in 2020, the Colorado legislature passed the Healthy Families and Workplaces Act (“HFWA”). HFWA requires employers to provide paid sick leave to all its employees. Included in this law was a separate requirement for employers to make available up to 80 hours of paid leave for certain reasons to employees when a public health emergency is declared. This requirement to provide PHEL leave applied when either the state or the federal government had declared a public health emergency. 

    Of course, since HFWA became a law, there has been a constant declaration of a public health emergency. At one point, Governor Polis ended the public health emergency in Colorado, but the Biden administration continued the federal declaration of a public health emergency. So, due to this ongoing federal declaration, Colorado employers have been continuously subjected to the PHEL’s requirements. Accordingly, with the January 30 announcement, the ongoing PHEL requirement has a potential end date…namely June 8, 2023, because Colorado permits employees to use PHEL until four weeks after the official termination of the public health emergency. 

    Assuming that no future issues occur between now and May 11, 2023, the requirement to make available up to 80 hours of paid sick leave to employees under PHEL will come to an end on June 8, 2023. Of course, Colorado employers still have to provide paid sick leave pursuant to the remaining requirements of HFWA. 

    Additional uses of paid sick leave under HFWA. And speaking of HFWA… a recently proposed Colorado bill would expand the reasons an employee can use HFWA sick leave. In short, SB23-017, would allow an employee to use accrued paid sick leave (i.e., HFWA leave) when the employee needs to: (1) 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 occurrence or event that results in the closure of the family member's school or place of care; or (2) grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member. 

    Expanding Equal Pay for Equal Work Act. This bill would add a number of new requirements to the Equal Pay Act. A few of those additions would require Colorado employers to: (1) post each job opportunity or promotional opportunity for at least five (5) days; (2) consider, in good faith, the applicants for each job opportunity or promotional opportunity through a competitive selection process; (3) after the organization selects a candidate in that process, the organization would need to post (a) the name of the candidate selected for the job; (b) the selected candidate’s former job title if selected while already employed by the organization; (c) the selected candidate’s new job title; and (d) information on how employees may demonstrate interest in similar job opportunities in the future; and (4) increase the potential damage claim from three (3) years to six (6) years for violations of the Act. 

    Preventing disclosure of age-related information on an application. This bill, SB23-058, would prohibit employers from inquiring about a prospective employee's age, date of birth, and dates of attendance at or date of graduation from an educational institution on an employment application.

    Expansion of Unemployment allowances for dependents. HB23-1078 would create a dependent allowance for an individual receiving unemployment compensation (“eligible individual”) for each of the eligible individual's dependents. The dependent allowance, which starts on July 1, 2025, is $35 per dependent per week, and increases annually for inflation if necessary. The bill defines "dependent" as a child of an eligible individual who receives at least half of the child's financial support from the eligible individual and who is: (a) under 18 years of age; or (b) 18 years of age or older and incapable of self-care because of a mental or physical disability.

    Fair workweek employment standards. This 32-page bill has a number of requirements principally aimed at food-and-beverage retailers with more than 249 employees worldwide.  Some of the requirements include requiring covered employers to provide more set schedules for employees and compensation to employees if there is a deviation from that set schedule, requiring covered employers to have at least a certain amount of time between an employee’s shifts, and requiring the organization to offer to distribute work hours to current employees before hiring a new employee. 

    Prohibition against an employer taking adverse action against an employee who accepts a gratuity. The bill, pretty much, matches the title of it. That is, even if an employer has a policy restricting an employee from taking tips, this bill, HB23-1156, would prohibit the business from taking any adverse action against an employee that accepts such tips. 

    Will FAMLI be delayed? Before you get too excited, while HB23-1104 did propose a delay in the implementation of FAMLI until 2025, that bill already has the designation of “postponed indefinitely,” which has the same effect as moving to kill a measure. So, in sum, FAMLI is still on track for a 2024 implementation. 

    2023 has certainly started out with a lot of fireworks!!

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