the words employment law on a smartphone

Michelle Ferguson outlines the employment law issues that should be on every special district’s radar in 2020.

The SDA’s Annual conference successfully wrapped up last week. Districts have had a lot to tackle in 2020, and here are the employment issues that should be on every district’s radar, including Families First Coronavirus Response Act, workplace safety and COVID-19, social media and First Amendment rights, the CROWN Act, the PHEW law, and the Healthy Families & Workplaces Act.

Families First Coronavirus Response Act (FFCRA)

The federal Families First Coronavirus Response Act (“FFCRA”) creates two new emergency leave benefits for families impacted by COVID-19. Specifically, it expands the Family and Medical Leave Act of 1993 (“FMLA”) and requires emergency paid sick leave. Here is the Department of Labor’s poster that must be posted in a conspicuous place.

Effective through December 31, 2020, FFCRA generally applies to all employers with fewer than 500 employees. However, through the Colorado statute, the Healthy Families and Workplaces Act (“HFWA”), FFCRA applies to all Colorado employers, regardless of size.
Since the recording of the presentation, the Department of Labor has revised its definition of “health care provider” for purposes of the FFCRA exemption. Effective September 16, 2020, a health care provider is anyone who is a licensed doctor of medicine, nurse practitioner, physician assistant as well as “any other Employee who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.”

Finally, and particularly of importance to fire services districts and other districts that provide emergency services, another exemption from FFCRA exists for emergency responders. An emergency responder is anyone necessary for the provision of transport, care, healthcare, comfort and nutrition of such patients, or others needed for the response to COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, firefighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, child welfare workers and service providers, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency, as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Please see this article for further information regarding FFCRA.

Workplace Safety & Concerns During COVID-19

Employers are obliged to create a safe workplace for all employees and contain risk to the extent reasonable. During the COVID-19 pandemic, this means that employers must analyze every detail of their physical workspaces and take appropriate precautions to protect employees and the public. Additionally, employers must continue to monitor and follow all state and local public health orders as well as CDC guidance.

Social Media and Employees’ First Amendment Rights

In addition to a global pandemic, 2020 has highlighted various social matters and many people are turning to social media and the Internet to stay connected and post their opinions. Accordingly, it is important to provide a reminder that an employee’s social media activity may adversely impact their employment with a special district.

In Colorado, an employer cannot terminate an employee who is engaged in lawful off-duty conduct, unless: (1) the conduct relates to a bona fide occupational requirement; (2) the conduct is “reasonably and rationally related” to the employer or the employee’s work; or (3) to avoid a conflict of interest.

Further, there are limits to First Amendment free-speech rights. A three-part, fact-specific test is used to determine when a public employee’s speech is protected under the First Amendment. In essence, only speech concerning matters of public concern that is more important than a special district’s need to control its operations is protected by the First Amendment—this is pretty limited.

As such, anyone associated with the special district should be careful of what they post on social media and know that the First Amendment right to free speech is not unlimited.

Creating a Respectful and Open World for Natural Hair (CROWN) Act

The CROWN Act expands the scope of Colorado’s anti-discrimination statutes to protect against race discrimination based on hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race. “Protective hairstyle” is defined by the statute to include hairstyles as braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps. To comply with the CROWN Act, employers should update their personnel and anti-discrimination policies with the expanded definitions of “race” and “protective hairstyle” and train supervisors on such issues, as well as updating any dress code policies.

Public Health Emergency Whistleblower (PHEW) Law

The PHEW Law prohibits all employers, including public employers and subdivisions of the State of Colorado, from discriminating, retaliating, or taking adverse action against any worker who:The PHEW Law prohibits all employers, including public employers and subdivisions of the State of Colorado, from discriminating, retaliating, or taking adverse action against any worker who:

a. In good faith, raises any reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety, related to a public health emergency to the employer, the employer’s agent, other workers, a government agency, or the public if the employer controls the workplace conditions giving rise to the threat or violation;

b. Opposes any practice the worker reasonably believes is unlawful under the PHEW or for making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing as to any matter the worker reasonably believes to be unlawful under the new law; or,

c. Voluntarily wears at work the worker’s own personal protective equipment, such as a mask, faceguard, or gloves, if the personal protective equipment:

  1. provides a higher level of protection than the equipment provided by the employer;
  2. is recommended by a federal, state, or local public health agency with jurisdiction over the worker’s workplace; and
  3. does not render the worker incapable of performing the worker’s job or prevent a worker from fulfilling the duties of the worker’s position.

The bill requires the employer to post notice of a worker’s rights under PHEW in a conspicuous location on the employer’s premises. The Colorado Division of Labor and Employment has published this PHEW poster.

Healthy Families & Workplaces Act (HWFA)

The HFWA fundamentally changes the employment landscape regarding paid sick leave. Effective January 1, 2021 for employers with 16 or more employees, and effective January 1, 2022 for employers with fewer than 16 employees, all employers in Colorado, including special districts, must provide employees with paid sick leave (“PSL”), which accrues at one hour of PSL for every 30 hours worked, up to a maximum of 48 hours of PSL per year. Employers also must provide employees with additional PSL during a public health emergency so that during a public health emergency a full-time employee has up to 80 hours of PSL available (or a pro-rated amount for employees who regularly work less than 40 hours per week). (In other words, during times of a public health emergency, a full-time employee who has not used any of his/her accrued but unused PSL would be entitled to an additional 32 hours of PSL from the employer during the public health emergency). PSL is paid at the employee’s same hourly rate or salary, not including overtime, bonuses, or holiday pay. PSL is not paid out upon separation of employment. The Colorado Department of Labor and Employment has published notices for employers to utilize, one that is effective immediately and one that is effective and must be posted on January 1, 2021.

This article provides more information regarding the HFWA.

What is written here is intended as general information and is not to be construed as legal advice. If legal advice is needed, you should consult an attorney.