November 2021: Colorado’s Department of Labor and Employment Issues New Rules for Paid Sick Leave In 2022

Update Applicable to:
All employers in Colorado.

What happened?
On November 10, 2021, the Colorado Department of Labor and Employment (CDLE) has adopted new Paid Sick Leave (PSL) rules for employees per 7 CCR 1103-7.

What are the details?
Effective January 1, 2022, employers will be required to provide PSL for all employees, accrued at one hour of PSL for every 30 hours worked, up to a maximum of 48 hours. If the employee does not use all the hours accrued, it will be carried forward to and may be used in a subsequent year, except that an employer is not required to allow the employee to use more than 48 hours of PSL in a year.

Employees may use accrued PSL to be absent from work for the following purposes:

  • The employee has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care;
  • The employee needs to care for a family member who has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or needs to obtain preventive medical care;
  • The employee or family member has been the victim of domestic abuse, sexual assault, or harassment and needs to be absent from work for purposes related to such crime; or
  • A public official has ordered the closure of the school or place of care of the employee’s child or of the employee’s place of business due to a public health emergency, necessitating the employee’s absence from work.

In addition to the paid sick leave accrued by an employee, the act requires an employer, regardless of size, to provide its employees an additional amount of paid sick leave during a Public Health Emergency (PHE) in an amount based on the number of hours the employee works.

The PHE leave is to be made immediately available, up to 80 hours or a 14-day average, and can only be used once during the entire PHE. Just as PSL, there is no cash value.

Per CDLE on PHE: Colorado’s 80-hour COVID-19-related leave continues if a COVID-19-related emergency remains “declared by a federal, state, or local public health agency,” and the federal COVID-19 emergency is ongoing.

The latest declaration extends through January 16, 2022.

The Healthy Families and Workplaces Act (HFWA) continues the right to COVID-19-related leave “until four weeks after” all applicable public health emergencies end or are suspended. For Colorado, this means the earliest end date is February 13, 2022.

The new rules also clarify that per HFWA’s recordkeeping requirements, employers must maintain and provide, upon an employee’s request, the current amount of paid leave the employee (1) has available and (2) has already used during the year, including paid sick and safe leave and any supplemental public health emergency leave. In other words, employers need to keep detailed records of the type of leave each employee has available and has used.

For more information, please see the links below:

7 CCR 1103-7

Senate Bill 20-205

Colorado Adopted Rules to be Effective in 2022

Article 1Article 2

What do employers need to do?
Employers should review the links above, prepare to adjust their PSL policies, and keep detailed records of all types of leave each employee has available and used.

October 2021 Colorado HR Legal Updates

Extension of Colorado Public Health Emergency Supplemental Leave

Update Applicable to:
All employers in Colorado.

What happened?
On October 15, 2021, U.S. Secretary of Health and Human Services Xavier Becerra announced an extension of the COVID-19 public health emergency (PHE).

What are the details?
Effective October 18, 2021, the PHE has been extended through January 16, 2022 (each renewal of determination signed by the U.S Secretary is for the duration of 90 days – Link).

In accordance with 7 CCR 1103-7 Section 3.5.1(D) Link– Page 7, the Healthy Families and Workplaces Act (HFWA) in Colorado requires employers to permit employees to take leave for qualifying reasons as per C.R.S. § 8-13.3-405(3) Link– throughout the duration of the emergency and until four weeks after it ends on February 13, 2022.
 
For more information, please see the links below:
 
Extension of Public Health Emergency (PHE)
 
Public Health Emergency Planning and FAQs
 
Article 1

What do employers need to do?
Employers should review the links above and continue to provide the required sick leave in accordance with the law.

October 2021: Possible Colorado Minimum Wage Increase in 2022

Update Applicable to:

All employers in Colorado.

What happened?

On November 6, 2016, the Colorado $12 Minimum Wage Amendment (Amendment 70) was included in a ballot and later approved in 2017. The law increases the minimum wage annually on January 1, 2022.

The minimum wage in Colorado is expected to increase on January 1, 2022, following the end of a comment period on November 3, 2021.

What are the details?

On September 27, 2021, the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics opened a comment period after proposing a new state minimum wage increase per Amendment 70. Once the comment period ends on November 3, 2021, the minimum wage will increase, if made official.

If made official, starting January 1, 2022, the minimum wage will possibly increase to $12.56, while the minimum wage for tipped employees will increase to $9.54.

For more information, please see the links below:
 
Amendment 70

Article 1

What do employers need to do?

Employers should review the article and amendment to make needed changes in preparation for the proposed annual increase.

September 2021 Colorado HR Legal Updates

COVID-19 Vaccination Mandate Issued in Colorado

Update Applicable to:

Colorado employers in healthcare settings.

What happened?

On August 30, 2021, the Colorado Board of Health (BoH) enacted an emergency rule for COVID-19 vaccination requirements to employees in healthcare settings due to a request from Governor Jared Polis.

What are the details?

The Rule, effective immediately, requires all staff in incensed healthcare settings to receive their first dose of the COVID-19 vaccine by September 30, 2021 and be fully vaccinated by October 31, 2021. All covered employees are also required to obtain a subsequent, or booster, dose of the COVID-19 vaccination should one be recommended by the Advisory Committee on Immunizations Practices within the Centers for Disease Control and Prevention (CDC). Healthcare facilities are also required to hire only fully vaccinated workers after October 31, 2021.

The Rule applies to employees in the following healthcare facilities:

  • Acute treatment units
  • Ambulatory surgical centers
  • Assisted living residences
  • Behavioral health entities
  • Birth centers
  • Community clinics
  • Community clinics with emergency centers, mental health centers, or integrated healthcare services agencies
  • Dialysis treatment clinics
  • Freestanding emergency departments
  • Home care agencies and placement agencies
  • Hospices
  • Hospitals (general, rehabilitation, psychiatric, and hospital units)
  • Facilities for individuals with intellectual and developmental disabilities (group homes and intermediate care facilities)
  • Nursing homes

Employees, direct contractors, and support staff of these facilities are required to comply with the vaccine mandate if they have “potential for exposure to clients of the facility or agency and/or to infectious materials, including bodily substances, contaminated medical supplies and equipment, contaminated environmental surfaces, or contaminated air.” The mandate does not apply to individual healthcare practitioners or staff, or settings where patients seek medical care, including primary care offices and urgent care locations.

The Rule additionally mandates that covered entities develop and implement a vaccination policy and procedure that complies with the rule. In addition to mandating that all covered employees and new hires be fully vaccinated for COVID-19 by the dates set forth above, with the document including their minimum guidelines.

Covered entities must also maintain records of proof of employees’ immunization, as well as documentation stating if an employee is exempt from the vaccine mandate due to a qualifying medical or religious exemption. The rule specifically defines what kind of documentation would qualify an employee for a medical exemption.

Additionally, beginning October 1, each facility or agency must report its COVID-19 vaccination rate to the Board on the 1st and 15th day of each month. Information reported to the Board under the rule’s reporting obligation will be made publicly available on the Board’s website.

The emergency rule can be read here.

The notice from the BoH can be read here.

The letter from the Governor can be read here.

An article on the rule can be read here.

What do employers need to do?

Employers should review the emergency rule and their current vaccination policies to make any applicable changes and additions to stay in compliance with the new rule’s vaccination standard and timeline.

August 2021 Colorado HR Legal Updates

Public-Sector and Some Private-Sector Employees Mandated to Receive COVID-19 Vaccinations in Denver

Update Applicable to:
Employers with employees in high-risk settings and city workers in Denver, Colorado.

What happened?
On August 2, 2021, Mayor Hancock issued a Public Health Order (the order) that mandates COVID-19 vaccines to certain workers.

What are the details?
The order states that all city workers (including volunteers, interns, and contractors of the city), as well as private-sector employees, are required to be fully vaccinated by September 30, 2021, which requires the final vaccine dose to be received by September 15, 2021. If a covered employee is unvaccinated after September 30, 2021, they will not be permitted to work onsite or in the field. Private-sector employees covered under that mandate include those working in hospitals and clinical settings, nursing homes, homeless shelters, correctional facilities, childcare centers, schools, and post-secondary institutions, and any entity providing home care to patients or first responder services, regardless of whether the entity is public or private.

The City of Denver has provided an online toolkit that contains a template letter for employees and an informational flyer for employees that employers can utilize. Representatives of the City of Denver have also stated that private businesses and organizations subject to the vaccine requirement will be asked to maintain records to show their compliance. Noncompliance could result in financial penalties or a court summons, and businesses could be issued an administrative citation every day for not complying.

The Public Health Order can be read here.

The online toolkit is located here.

An article on the order is found here.

What do employers need to do?
Employers should review the Public Health Order and make the required changes to stay in compliance with the City of Denver and its vaccination policies. The law firm, Littler Mendelson P.C., suggests that employers maintain records as representatives of the City of Denver have stated private businesses and organizations subject to the vaccine requirement will be asked to show their compliance.

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Colorado Requires Salary Ranges on Remote Job Postings Regardless of Geography

Update Applicable to:
Employers in Colorado.

What happened?
On July 21, 2021, the Colorado Department of Labor and Employment’s (CDLE) Division of Labor Standards and Statistics updated its Interpretive Notice and Formal Opinion (INFO) #9.

What are the details?
Effective immediately, the revised notice states that the out-of-state exception must be applied narrowly and normally would only apply to jobs tied to non-Colorado worksites, as an example. In addition, the notice makes clear that the requirement to include compensation information in postings would encompass job postings for remote work, even if such a posting states that an employer would not accept Colorado applicants.

The notice also clarified that when posting a compensation range, employers may not leave the bottom or top of the range open-ended (for example, “$30,000 and up” or “up to $60,000”).

The notice can be read here.

An article on the notice can be read here.

What do employers need to do?
Employers should review the revised notice and make any applicable updates to their current and future job postings to stay in compliance.

July 2021 Colorado HR Legal Updates

Colorado Passes Comprehensive Privacy Law

Update Applicable to:
All employers doing business in Colorado who are classified as Controllers by the new law.

What happened?
On July 7, 2021, Governor Jared Polis signed SB 21-109 into law.

What are the details?
Effective, July 1, 2023, the Colorado Privacy Act (CPA) will take effect. The law is applicable to businesses that are classified as “controllers”, which are defined as any entity that (i) determines the purposes and means of processing personal data, (ii) conducts business in Colorado or produces or delivers commercial products or services intentionally targeted to residents of the state, and (iii) either:  (a) controls or processes the personal data of more than 100,000 Colorado residents per year or (b) derives revenue from selling the personal data of more than 25,000 Colorado residents. Their new duties include:

The law provides new obligations to Controllers as well as new rights to consumers or a Colorado resident acting in an individual or household context. The CPA does not apply to data that is subject to other federal privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA), the Children’s Online Privacy Protection Act (COPPA), the Gramm-Leach-Bliley Act (GLBA), the Family Educational Rights and Privacy Act (FERPA), and the Securities Exchange Act of 1934. Other data that is exempt is employment data, higher education institutions, nonprofits, state and local governments, and public utility customer records (so long as they are not sold).

Controllers will need to follow the new duties that are described in the law. These new duties include:

  • Duty of transparency;
  • Duty of purpose specification;
  • Duty of data minimization;
  • Duty to avoid secondary use;
  • Duty to avoid unlawful discrimination;
  • Duty regarding sensitive data.

In addition, controllers must also conduct data protection assessments for each processing activity involving a heightened risk of harm to Consumers, including:

  • The sale of personal data;
  • Processing of sensitive data; or
  • Processing personal data for targeted advertising if it could lead to unfair or deceptive treatment or have a disparate impact on Consumers, financial or physical injury, physical or other intrusion upon seclusion, or other substantial injury.

Controllers must present these data protection assessments to the CO Attorney General upon request.

Controllers should be aware that the CPA empowers Consumers with new controls over their data, including the right to:

  • opt out of the processing of certain personal data;
  • access personal data (up to twice per calendar year);
  • correct inaccurate data;
  • delete personal data; and
  • data portability.

Consumers may request access to their personal data, Controllers may not require that a Consumer create a new account in order to exercise this right (or retaliate with increased cost or decreased availability of a product or service).  When responding to Consumer data requests, Controllers must:

  • Take action on the Consumer’s request without undue delay and within 45 days of receiving the request—with few exceptions.
  • Develop an internal process for Consumers to appeal refusals of data requests.
  • Notify the Consumer that it may contact the Colorado Attorney General if the Consumer has concerns about the result of the response and outcome of appeal.

The law can be read here.

Articles on the law are read here and here.

What do employers need to do?
Employers should review the new law and the information above to update any applicable policies and practices to stay in compliance and be prepared for when the law becomes active.

 

June 2021 Colorado HR Legal Updates

Colorado Supreme Court Decides on Use-it or Lose-it Policies

Update Applicable to:
Colorado employers offering vacation/PTO policies.

What happened?
In a recent case, the Colorado Supreme court has ruled that “use-it or lose-it” policies as applied to vacation or Paid Time Off (PTO) plans are not compatible with the Colorado Wage Claim Act.

What are the details?
On Monday, June 14, 2021, the Colorado Supreme Court issued a long-awaited decision prohibiting so-called “use-it or lose-it” vacation policies. In Nieto v. Clark’s Market, 19SC553, the Supreme Court overturned both the trial court and the lower appellate court to hold that the Colorado Wage Claim Act (CWCA) prohibits the forfeiture of earned vacation pay at the end of employment, even when an employment agreement or policy provides that accrued vacation is not paid out upon separation.

The crux of this dispute is that the CWCA defines “wages” as amounts that are “earned, vested, and determinable.” However, the vacation payout provision within subsection 14(a)(III) only requires vacation pay to be “earned” and “determinable.” The omission of the term “vested” from the vacation payout provision had been the subject of multiple lower Court decisions that upheld employer use-it or lose-it policies. The Supreme Court disregarded the “vested” portion of the wages definition by reasoning that “vested” may be synonymous with “earned” and that the more specific payout provision trumps the general definition of wages. The Court also found that the CWCA general protections of wages and compensation apply to vacation pay and that the law’s remedial purpose would be contradicted if earned and unused vacation pay could be lost through a separate agreement.

An article covering the ruling may be found here.

What do employers need to do?
Employers offering vacation benefits will need to update their policies to reflect the new ruling. Employers who previously used a use-it or lose-it policy should remove these policies as soon as possible. Law firms, like Husch Blackwell LLP, recommend that employers either remove the policy’s language regarding “use-it or lose-it” or adapt the policy to instead cap accruals once employees hit max level.

March 2021 Colorado HR Legal Updates

Colorado Provides Clarity on Paid Sick Leave Obligations for New Hires

Update Applicable to:
All Employers operating in Colorado.

What happened?
On February 23, 2021, the Colorado Department of Labor and Employment (“CDLE” or the “Division”) issued revisions to the Wage Protection Rules, 7 CCR 1103-7, relating to Colorado employers’ paid sick leave obligations under the Healthy Families and Workplaces Act (“HFWA”).

What are the details?
The HFWA requires Colorado employers to provide at least 48 hours of paid sick and safe leave (“PSSL”) each year on either an accrual basis based on hours worked or frontloaded annually. The new rules do not in any way alter this requirement.

In addition to this requirement, though, the law also requires all Colorado employers to provide employees access to up to 80-hours of public health emergency leave (“PHEL”) upon the declaration of a public health emergency by federal, state, or local authorities. In its last iteration of the Wage Protection Rules, the CDLE confirmed that the current COVID-19 public health emergency triggers the requirement to provide PHEL. There remained several ambiguities in the text of the rules, however, particularly concerning how much PHEL new hires or part-time employees are entitled under the law. While some ambiguities remain, the CDLE clarified some issues for employers.

First, the rules make clear that the amount of PHEL to which part-time employees are entitled is tied to when the employee requests PHEL. Full-time employees (employees who work at least 40-hours per week) are entitled to 80-hours of PHEL under the law, but it was previously unclear what amount of PHEL employers needed to provide to part-time employees. The statute’s text and the prior version of the rules provided that such employees were entitled to leave equal to the amount they work in a 14-days, but it was unclear to which 14-days this language referred. The rules now provide that part-time employees receive PHEL in “the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-days after the leave request, or (b) actually worked in the 14-days prior to the declaration of the public health emergency or the leave request, whichever is later.”

Having the amount of PHEL part-time employees receive tied to when they request PHEL makes compliance less challenging and fosters administrative ease for employers. By pegging the calculation to an employee’s “live” need for leave, the calculation produces a result that represents the employee’s current working situation, unlike, for example, what the employee might have been working months ago. Importantly, by tying the calculation to an actual need to use leave, employers can reduce the time staff must spend calculating leave that might never be used and instead can more effectively use their time addressing critical business needs during a public health emergency and assisting employees with their actual needs.

The second change makes clear that employees who are hired during a public health emergency are entitled to PHEL. A plain reading of the prior version of the rules—which tied PHEL entitlement to the number of hours an employee worked before the declaration of a public health emergency, or 14-days before or after January 1, 2021—would have excluded employees hired on or after January 15, 2021 from being eligible for PHEL. Thus, the CDLE’s revised language makes clear that all employees are entitled to PHEL regardless of their date of hire because PHEL eligibility is linked to when the employee requests leave.

You can read more about the rule revisions here.  

What do employers need to do?
Employers operating within Colorado should review the above changes to the existing PHEL rules and determine if any changes need to be made to workplace policies.

January 2021 Colorado HR Legal Updates

CDLE Confirms COVID-19 Considered Public Health Emergency for Paid Sick Leave Considerations

Update Applicable to:
All Colorado Employers.

What happened?
The Colorado Department of Labor and Employment (CLDE) has new INFO documents that state that going into 2021 COVID-19 will trigger the Healthy Families and Workplaces Act’s (HFWA) Public Health Emergency provisions.

What are the details?
Those familiar with the HFWA will remember that there was a provision included in the legislation that would grant similar supplemental leave as was provided temporarily to Colorado employees for the duration of 2020. This supplemental leave would only be provided should a state of emergency be declared in the state of Colorado and would be usable for the same reasons as the temporary COVID-19 supplemental sick leave. Many employers were wondering if the provision would be active once 2021 arrived due to COVID-19 meeting the criteria but having been covered already by a previous piece of legislation.

The CDLE has since provided clarification in INFO # 6C that employers will now be required to provide another 80 hours of supplemental paid sick leave to employees, this is from a different pool as the previously required 80 hours of supplemental paid sick leave.

INFO #6C can be found here.

What do employers need to do?
Colorado employers should look to update their management teams about this potential increase in supplemental paid sick leave to avoid workplace confusion.

December 2020 Colorado HR Legal Updates

Overtime Changes for 2021

What happened?
The Colorado Department of Labor and Employment released the new Colorado Overtime and Minimum Wage Pay Standards (COMPS) Order #37, which expands the administrative and professional employee exemptions, incorporates the Colorado Healthy Families and Workplaces Act (HFWA), and mandates pay adjustments for certain employees.

What are the details?
The COMPS order includes clarifications about the transportation worker exemption, including the addition of taxicab drivers into the exemption. The administrative employee exemption has had its definition revised, making it more encompassing. The professional employee exemption has been changed to be more similar to the Fair Labor Standards Act (FLSA), in that it now includes “creative professional(s)”. The order includes some additional information about the Healthy Families and Workplaces Act, which employers may recognize as the legislation mandating Paid Sick Leave effective January 1, 2021. The COMPS order finishes off with information on the new minimum wage, ($12.32) and the increase to salary thresholds that accompany the change to minimum wage.

A more in depth breakdown of the COMPS order can be found here.

COMPS Order #37 can be found here.

 

What do employers need to do?
Colorado employers should review the above information and work with their payroll administrators to ensure compliance with any wage related legislation.

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Updated FAQs: Colorado’s Equal Pay Rules for Job Posting and Pay Transparency

The Colorado Department of Labor and Employment recently released their Interpretive Notice and Formal Opinion #9 (INFO #9), which includes further clarifications on the final rules of the equal pay rules that will be effective January 1, 2021. Husch Blackwell LLP has provided an FAQ that answers questions employers may have using the information on INFO #9. This FAQ can be found here, in the bottom half of the article.