Changes in Colorado’s employment law for 2021

2021 is a year of excitement for many expecting to clear the COVID-19 pandemic. It is also a crucial year for Colorado’s employers, who must immediately work to understand the most massive changes to Colorado’s employment laws in recent history, which we have outlined below.

The Better-Knowns

Colorado’s Equal Pay for Equal Work Act (SB19-085) (EPEWA) is effective January 1, 2021. This act builds upon the federal Equal Pay Act passed in 1963 prohibiting a wage differential based on sex (including gender identity) with actionable items every Colorado employer must address.

The EPEWA requires employers of any size to announce to all employees employment advancement opportunities and job openings, and a position’s pay range, including a list of benefits, for the opening. These requirements are further detailed in the Equal Pay Transparency Rules approved on November 2, 2020.

The EPEWA also prohibits asking employees for wage or salary history or relying on the same in the on-boarding process. If there is a pay differential, the entire differential must be supported by the approved factors of: seniority, merit, quantity or quality systems, location, education or training, or required travel. The EPEWA requires employers to address their policies and procedures top to bottom regarding employee pay, and to include any employee complaints under the EPEWA in its anti-retaliation policy.

Colorado’s Healthy Families and Workplaces Act (SB 20-205, July 14, 2020) (HFWA) was enacted early to address COVID-19 requiring Colorado employers to provide employees paid sick leave of up to 80 hours for COVID-19-related symptoms, illness and the need to take care of family members during the pandemic.

On January 1, 2021, HFWA will continue to require public emergency paid sick leave and require employers with 16 or more employees to implement accrual of paid sick leave up to 48 hours for physical or mental illness and caretaking beyond COVID-19.

Paid sick leave under HFWA is not required to be paid upon termination, distinguishing it from Colorado employers’ accrued PTO or vacation policies, which require payment of unused paid time off upon termination. Employers must be educated on the difference and craft their policies to address the different types of leave and how an employee may accrue and use them.

HFWA also requires employers to include the Colorado Department of Labor and Employment’s HFWA posters in the workplace and attach the poster to its employee manuals. The poster explains the application of HFWA but employers must be administratively ready to track and address paid sick leave for the eligible reasons under HFWA.

The Lessor-Knowns

Colorado’s Public Health Emergency Whistleblower (PHEW) is a response to providing COVID-19 health and safety protections for workers. Under PHEW, employers must address their workspaces to keep them as safe and healthy as possible. In essence, PHEW protects workers (“workers” includes employees as well as certain independent contractors) who engage in a protected activity, such as:

• Raising concerns about workplace safety and health.
• Voluntarily wearing their own PPE.
• Opposing practices that a worker believes violate PHEW.
• Making a charge or otherwise participating in an investigation into possible violations.

In light of these new protections, employers should take seriously all complaints related to the health and safety of their workplaces, and, to the extent possible and practicable, consider employees’ requests to wear their own PPE. If the rights of multiple workers are violated, the violation as to each worker is a separate violation for the purposes of determining fines, penalties, and other remedies.

Employers should review their documents such as NDAs to ensure personnel are not required to sign any document that prohibits disclosure of workplace safety issues, which is expressly prohibited by PHEW. PHEW also allows individuals to file qui tam actions, meaning that employees are empowered to entirely skip the administrative relief process and file their own claims. To comply with PHEW, Employers should educate their supervisors to treat workplace safety and health complaints seriously through a designated process established by the Employer.

Unemployment fraud is an epidemic across the country and is not showing signs of slowing down in 2021. Unemployment fraud is when a fraudster files for unemployment using the Social Security number of another person, which then arrives in an employer’s mailbox. Often, these are unemployment claims in the names of active employees, tipping off the employer to the fraud.

If an employer suspects unemployment fraud, the employer should contact the employee or ex-employee and confirm employment status and alert them to the suspected fraud. Both Colorado’s Division of Unemployment and Department of Labor and Employment have a website to submit reports of fraud.

The employee should also request a stop on credit and inquire with credit cards, banks, and insurance to find fraud assistance at various levels. The police may also be contacted. To help curb this epidemic, employers should scrutinize their unemployment claims as well as their internal communications and IT systems to minimize and mitigate any risk of breach of employee information.

On the Radar:

The EEOC’s Proposed Revisions on Religious Discrimination

The Equal Employment Opportunity Commission (EEOC) announced on November 17, 2020, that it was seeking public input over a 30-day period on its updated Compliance Manual on Religious Discrimination. Although the guidance does not have the force of law, it provides employers with insight as to how existing law may be interpreted.

The proposed revised guidance addresses the ‘ministerial exception.’ In July 2020, the U.S. Supreme Court barred lower courts from adjudicating employment discrimination claims brought by employees who perform certain religious tasks for religious employers. SCOTUS clarified that the ministerial exception provided a defense against discrimination claims by employees who were not only heads of a religious congregation or members of the clergy, but lay persons who, even if they did not practice the faith, perform “vital religious duties” in the religious organization.

The guidance explains that the ministerial exception serves as a defense to religious employers (who already typically enjoy protection against religious discrimination claims) against Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act claims. Employers that may claim a religious organization also include “religious schools, hospitals, and charities,” and courts have applied the ministerial exception in cases involving teachers, musicians, and kosher food inspectors.

The guidance also addresses reasonable accommodations and the undue hardship analysis for religious discrimination. Through several examples, the guidance explains how employers may use a variety of methods to provide reasonable accommodations to its employees, including flexible scheduling, voluntary substitutes or swaps of shifts, lateral transfers, and modifying workplace policies.

Per the guidance, in analyzing if an accommodation could result in an undue hardship, factors that may be considered include the identifiable cost in relation to the employer’s size and operating costs, and the number of individuals who will need a particular accommodation. Employers cannot rely on hypothetical hardships when faced with an employee’s religious obligation that conflicts with scheduled work, and cannot use the assumption that many other people with the same religious practices as the person being accommodated may also seek accommodation as evidence of undue hardship.

Stephanie Loughner is a partner and attorney in Denver-based law firm Moye White LLP’s employment team. She can be reached at [email protected].

 Niki Vinod Schwab is an associate and attorney in Denver-based law firm Moye White LLP’s employment team. She can be reached at [email protected].