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May 2022: Colorado’s Public Health Emergency Paid Sick Leave Requirement Continues

Update Applicable to:
All employers in the state of Colorado

What happened?
On April 12, 2022, The Department of Health and Human Services renewed the public health emergency (PHE) determination. The 90-day renewal took effect on April 16, 2022, and if not renewed again, will expire on July 15, 2022.

What are the details?
Under Colorado’s Healthy Families and Workplaces Act (HFWA), employers are required to provide extra paid leave to employees when there is a PHE and for four weeks after the expiration of the PHE. Confusion has resulted due to multiple government officials and agencies, on both the federal and state level, making multiple emergency and disaster declarations. For HFWA purposes, the expiration of one is of no consequence when the others exist.

HFWA’s definition of a “public health emergency” has resulted in widespread confusion and misinformation. To set off on the right foot, the statutory language is excerpted below:

A “public health emergency” is defined as:

  1. an act of bioterrorism, pandemic influenza, or an epidemic caused by a novel and highly fatal infectious agent, for which:
    • an emergency is declared by a federal, state, or local public health agency; or
    • a disaster emergency is declared by the governor; or
  2. a highly infectious illness or agent with epidemic or pandemic potential for which a disaster emergency is declared by the governor.

For more information, please see the links below:

PHE Renewal Determination

PHE Planning

Article 1Article 2

What do employers need to do?
Employers should review the links provided above, ensure your policies are up to date, and ensure human resources staff and managers are continuing to follow HFWA requirements.

December 2021: Counties in Colorado Issue Mask Mandate for Public Indoor Spaces Until January 2022

Update Applicable to:
All employers that provide public indoor spaces in Adams, Arapahoe, Douglas, and Denver counties in the state of Colorado.

What happened?
Denver County and the Tri-County Health Department for Adams, Arapahoe, and Douglas County released a public health order (PHO) requiring a mask mandate for all public indoor spaces.

What are the details?
Effective since November 24, 2021, for Denver County and December 1, 2021, for Adams, Arapahoe, and Douglas County; facilities that provide public indoor spaces must require face coverings for all indoor spaces OR choose to operate as a fully vaccinated facility and verify proof of full vaccination before entry.

Face coverings are required indoors for everyone ages two and older and are not required while seated at a food service establishment or actively eating or drinking.

This mandate applies to but is not limited to; common areas of apartment buildings, offices, gyms, shops, cultural facilities, restaurants, bars, and nightclubs.

These mandates will be in effect until January 3, 2022, for Denver County and January 1, 2022, for Adams, Arapahoe, and Douglas County

For more information, please see the links below:

Denver Public Health Order

Tri-County Public Health Orders (Adams, Arapahoe, and Douglas)

Article

What do employers need to do?
Employers should review the links provided above, review their current mask mandate policies, and adjust accordingly to comply with the new mandates.

December 2021: Colorado Mid-Month Updates

Colorado Department of Labor and Employment Releases Two Rules Affecting Pay Calculation and Amends COMPS 37

Update Applicable to:
All employers in Colorado.

What happened?
On November 10, 2021, the Colorado Department of Labor and Employment (CDLE) published two final rules called the PAY CALC Order and Colorado Overtime and Minimum Pay Standards Order #38 (COMPS 38), which amends COMPS 37, making adjustments to wage amounts and salary thresholds, which affects agricultural workers.

What are the details?
The PAY CALC Order is a new set of rules that publishes pay and income levels for minimum wage and various exemptions, including the new exemption for highly compensated employees, in a straightforward table.

COMPS 38 establishes two options for determining the regular rate of pay for employees working multiple jobs at different hourly rates for the same employer:

  • Weighted average method: To determine the employee’s regular rate for the workweek, add the employee’s earnings during that workweek and divide it by the number of hours worked.
  • Rate-in-effect method: The employee’s regular rate can be based on the rate in effect when the work is performed if the employer and employee agree that it will be calculated under this method.


Employers who want to use the “rate-in-effect” method must have a written agreement with the employee stating that this method will apply in advance of performing the work. Otherwise, the weighted average method will apply.

COMPS 38 also showcases a continuing trend in the state to narrow or eliminate certain job- and employee-specific exemptions. In response to the passage of a recent agricultural law, agricultural workers now must be paid the state minimum wage ($12.56 in 2022), but they may remain exempt from overtime requirements if certain pay and break requirements are met.

Agricultural range workers remain exempt from minimum wage requirements if they are paid the minimum salary in PAY CALC of $515 per week. Finally, COMPS 38 eliminates the option to pay employees certified by the CDLE to be less efficient in the performance of their job duties due to a disability 15 percent less than the applicable minimum wages.

The CDLE will issue a COMPS 38 poster that must be prominently displayed in the workplace or provided to employees if a physical posting is impractical. Updated posters may be found here.

These two new rules will go into effect on January 1, 2022.

For more information, please see the links below:

PAY CALC Order

COMPS Order #38

COMPS Poster

Agricultural Law

Article 1Article 2

What do employers need to do?
Employers should review the links provided above, prepare to make adjustments to their payroll system, and prepare to secure a location for the COMPS poster to be displayed or provided to their employees.



Colorado PSL Amendments Coming in 2022

Update Applicable to:
All employers in Colorado.

What happened?
Starting January 1, 2022, new amendments will be in effect for Paid Sick Leave (PSL) expanding to ALL employers in Colorado regardless of size per Statute § 8-13.3-403 in Senate Bill 20-205 (SB 20-205), the “Health Families and Workplaces Act” (HFWA).

What are the details?
On January 1, 2021, employers with 16 or more employees were required to provide all employees PSL accrued at one hour of PSL for every 40 hours worked, up to a maximum of 48 hours per year.

Effective January 1, 2022, this rule will be changed to include all employers in the state, regardless of size.

An employee begins accruing PSL when the employment begins, may use PSL as it is accrued, and may carry forward and use in subsequent calendar years up to 48 hours of PSL that is not used in the year in which it is accrued. 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:

  • 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;
  •  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.

The act prohibits an employer from retaliating against an employee who uses their PSL or otherwise exercises their rights under the act. Employers are required to notify employees of their rights under the act by providing them with written notice of their rights and displaying a poster, developed by the Colorado Division of Labor Standards and Statistics (DLSS) in the Colorado Department of Labor and Employment (CDLE), detailing employees’ rights under the act.

The act also treats an employee’s information about themselves or a family member’s health condition or domestic abuse, sexual assault, or harassment case as confidential and prohibits an employer from disclosing or requiring the employee to disclose such information as a condition of using their PSL.

For more information, please see the links below:

Senate Bill 20-205

Statute § 8-13.3-403

Colorado PSL Poster (All languages)

Federal Article

What do employers need to do?
Employers should review the links above and prepare to make adjustments to their PSL policies to include all employees in compliance with the new law.


Colorado Wage Protection Rule 2022

Update Applicable to:
All employers in Colorado.

What happened?
On November 10, 2021, the Colorado Department of Labor (CDLE) adopted a rule known as the Wage Protection Rules, 7 CCR 1103-7, that will include but not be limited to the Colorado Wage Act (CWA), The Healthy Families and Workplaces Act (HFWA) and the Agricultural Labor Rights and Responsibilities Act.

What are the details?
Effective January 1, 2022, Rule 2.17 prohibits “use-it-or-lose-it” vacation policies, and that all “earned” and “determinable” vacation pay must be paid at the end of an employment relationship regardless of any purported forfeiture agreement.  Employers must pay out unused and accrued vacation time at the end of employment as outlined in  C.R.S. § 8-4-101(14)(a)(III).

Employers that may have a generous Paid Time Off (PTO) policy that meets the Colorado State’s minimum Paid Sick Leave (PSL) requirements may include vacation, sick leave, holidays, and personal days that were not required to be paid out upon separation. However, the CDLE defines that when PTO is usable at the employee’s discretion (other than procedural requirements such as notice and approval of particular dates), rather than leave usable only upon the occurrence of a qualifying event (for example, a medical need, caretaking requirement, bereavement, or holiday). PTO would apply to this definition if utilized for vacation purposes, thus being paid out to the employee upon separation.

Rule 3.5.2 provides more details on how to calculate the number of hours and pay rate for HFWA leave to clarify its application to various unusual situations, such as when the employee is or has:

  • A variable pay rate
  • Not yet worked for 30 days
  • Indeterminate shifts that are open-ended in length and end at a time dictated by business needs rather than at a set time
  • “On call” hours

While this rule helps to add clarity around calculating the number of hours and pay rate for this leave, employers should note this is for HFWA purposes and is significantly different from the regular rate of overtime purposes under COMPS order #38.

For more information, please see the links below:

7 CCR 1103-7 Wage Protection Rules ADOPTED

Statement of Basis and Purposes

COMPS Order #38

Article 1Article 2

What do employers need to do?
Employers should review the links provided above, their vacation and/or paid time off policies, and prepare to make adjustments to their payroll system.

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.

_________________________________________________________________________________

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.

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