Federal and state employment and labor laws have undergone dramatic transformations this year so far. Many of these changes will affect private and public employers of all sizes and will require significant changes to an employer’s leave policies, reporting policies for harassment claims, religious and disability accommodations practices, and job posting practices. These new laws most certainly will result in an increase of employment litigation as well. While this article outlines some of the key changes, the takeaway is that it is absolutely necessary that each employer review their existing policies and make any necessary updates required due to these changes as soon as possible, and seek legal advice or advice from your HR professionals on these changes and their impact on your workforce.
Federal Law Updates
Accommodations of Religious Beliefs
On June 29, 2023, the U.S. Supreme Court delivered an impactful employment law decision in Groff v. DeJoy. The case before the Court was based on the plaintiff’s claim that the United States Postal Service failed to accommodate the employee’s sincerely held religious belief, observance, or practice. Under Title VII of the Civil Rights Act of 1964 (“Title VII”), employers of 15 or more employees must provide reasonable accommodations for an employee’s sincerely held religious belief, observance, or practice, unless the accommodation would result in “undue burden” on “the conduct of the employer’s business.” Federal precedent leading up to the Groff decision generally dictated that employers were required to provide such religious accommodations only if the burden to the employer was de minimis. In practice, this had generally been accepted to mean that employers did not have to provide an accommodation if it would result in more than a minimal burden to the employer’s operations.
The U.S. Supreme Court’s decision in Groff addresses the inconsistent interpretation of the “undue burden” standard under Title VII in the lower courts and results in a heightened standard that employers must meet when considering an employee’s request to accommodate the employee’s religious beliefs. The Court stated the ordinary meaning of “undue hardship” means “substantial additional costs” or “substantial expenditures.” Thus, even somewhat expensive or inconvenient measures may be required to accommodate an employee’s religious beliefs under Title VII, so long as those measures are not overwhelming or onerous.
The Court further held that the employer is required to consider other options that would accommodate the employee, instead of only addressing the accommodation proposed by the employee. This inquiry and exploration into all reasonable options is similar to the burden an employer must undertake when assessing reasonable accommodations for a disability, as outlined by the Americans with Disabilities Act.
The religious accommodations question is still a fact-specific inquiry, and what is reasonable or what causes “undue burden” to the employer will depend on the facts and circumstances of each request, likely leading to debates in future litigation. In the meantime, the Groff decision requires employers to rethink how they address an employee’s request for religious accommodations moving forward.
Form I-9 Change
The U.S. Citizenship and Immigration Services (“USCIS”) announced a new version of the Form I-9, Employment Eligibility Verification. Employers must use Form I-9 to verify the identity and employment authorization of their employees. USCIS made significant changes to the form and its instructions, including a checkbox to indicate that an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure.
Among other significant changes, USCIS’s new Form I-9 merges fields in Sections 1 and 2; moves the preparer/translator certification area to a separate supplementary document; removes the language referring to an “alien authorized to work” in Section 1, replacing it with “noncitizen authorized to work”; and updates notices to employers regarding avoidance of unlawful discrimination. The update also ensures that the Form I-9 is compatible with digital devices and can be filled out on tablets or mobile devices; A copy of the new form is available here. Prior versions of the Form I-9 will become obsolete as of November 1, 2023.
State Law Updates
The Colorado state legislature passed a number of new bills in the 2023 legislative session imposing additional requirements upon employers, which are discussed below.
Senate Bill 23-017 – Amendments to the Colorado Paid Leave Requirements
Senate Bill 23-017 amends the Healthy Families and Workplaces Act (“HFWA”), which requires public and private employers of all sizes to provide paid sick leave to their employees for various enumerated purposes. Effective August 7, 2023, SB 23-017 expands upon those reasons for which HFWA paid sick leave may be used, to include:
- Where the employee needs to grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member;
- The employee needs to 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; and
- The employee needs to evacuate the employee’s place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the need to evacuate the employee’s residence.
As a reminder, employers must provide all employees (whether full-time, part-time, temporary, or seasonal) at least one hour of paid sick leave for every 30 hours worked, which may be capped at 48 hours paid sick leave per calendar year. While sick leave must carry over year-to-year (although its use can be capped at 48 hours per year), accrued unused paid sick leave need not be paid out on separation from employment. These requirements are retained from the prior version of the HFWA, which have applied to public and private employers of all sizes since January 1, 2021. Employees also remain eligible to take paid sick leave for the following reasons:
- The employee has a mental or physical illness, injury, or health condition that prevents the employee from working; needs to obtain a medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or needs to obtain preventive medical care;
- The employee needs to care for a family member who is experiencing any of those three conditions;
- The employee or the employee’s family member has been the victim of domestic abuse, sexual assault, or harassment and the use of leave is to seek medical attention for the employee or the employee’s family member to recover from a mental or physical illness, injury, or health condition caused by the domestic abuse, sexual assault, or harassment; obtain services from a victim services organization; obtain mental health or other counseling; seek relocation due to the domestic abuse, sexual assault, or harassment; or seek legal services, including preparation for or participation in a civil or criminal proceeding relating to or resulting from the domestic abuse, sexual assault, or harassment; or
- Due to a public health emergency, a public official has ordered closure of: the employee’s place of business; or the school or place of care of the employee’s child and the employee needs to be absent from work to care for the employee’s child.
Employers are prohibited from denying paid sick leave for any of these reasons (unless the employee has exhausted all accrued paid leave) or retaliating against an employee for their use of paid sick leave. Additionally, employers are prohibited from seeking documentation to confirm the need for leave unless and until the employee is absent from work for four or more consecutive days. As a reminder, employers may meet the requirements under HFWA by using their existing leave policies so long as the policies provide clear notice of their intent to do so and such policies comply with all other aspects of the HFWA.
Senate Bill 23-058 – Job Application Questions
Senate Bill 23-058, otherwise known as the “Job Application Fairness Act,” prohibits employers from requiring applicants to provide age, date of birth, dates of attendance or dates of completion of graduation from educational institutions. Employers are permitted to request additional application materials, including copies of certifications, transcripts, and other materials created by third parties, at the time of an initial employment application, if the employer notifies the individual that the individual may redact information that identifies their age, date of birth, or dates of attendance at or graduation from an educational institution.
While this bill expressly prohibits seeking age-related information in job applications, federal and state anti-discrimination laws (such as the federal Age Discrimination in Employment Act (“ADEA”)) already precluded employers from seeking age or dates of birth on employment applications (aside from seeking similarly carved out application documents, such as proof of graduation). SB 23-058 codifies these requirements and clarifies reasons for which an employer can request potential age-identifying documentation under state law.
Senate Bill 23-105 – Amendments to the Equal Pay for Equal Work Act
Senate Bill 23-105 amends the Colorado Equal Pay for Equal Work Act (“EPEWA”). The EPEWA requires employers to pay workers the same for performing the same job duties, unless certain objective criteria are met which would justify a pay disparity, such as experience or tenure. The EPEWA further requires employers to post all job vacancies and promotional opportunities, at least internally, and to include in such postings pay information for the position, a description of the benefits available, and how eligible employees may apply.
Effective January 1, 2024, the EPEWA amendments add a requirement that the job posting also include the date the application window is expected to close. The amendments also create an exemption for employers with physical locations exclusively outside of Colorado, and who have fewer than 15 Colorado-based employees who all work remotely, clarifying that such employers only are required to provide their Colorado employees notice of remote job opportunities, not all promotional opportunities company-wide. This exception sunsets July 1, 2029.
The amendments also add a definition of “Job Opportunity” and “Vacancy,” which make clear that all vacancies, even entry level positions, most be posted. This moves away from the “promotion” verbiage included in the original EPEWA. However, in doing so, the State specifically carved out “Career Development” and “Career Progression” positions from the definition of “Job Opportunity”. As such, employers will no longer have to provide notice to current employees of career development or career progression promotions. Career Development is defined as a “…change to an employee’s terms of compensation, benefits, full-time or part-time status, duties, or access to further advancement in order to update the employee’s job title or compensate the employee to reflect work performed or contributions already made by the employee.” Career Progression is defined as “…a regular or automatic movement from one position to another based on time in a specific role or other objective metrics.” The Colorado Department of Labor & Employment (“CDLE”) likely will issue guidance this fall clarifying these definitions and offering additional insight on which positions can be categorized as Career Development or Career Progression. For positions with Career Progression opportunities, employers also must make available to all eligible employees the requirements for career progression, in addition to each position’s terms of compensation, benefits, full-time or part-time status, duties, and access to further advancement. As a reminder, these new changes do not take effect until January 1, 2024. As such, employers must continue to post positions that fall within the scope of Career Development or Career Progression until that time.
SB 23-105 also adds a new “post-selection” notice requirement. Specifically, employers must now make “reasonable efforts” to publish, within thirty calendar days after a candidate is selected to fill a position, the following information:
- the name of the candidate selected for the job opportunity;
- the selected candidate’s former job title if selected while already employed by the employer;
- the selected candidate’s new job title; and
- information on how employees may demonstrate interest in similar job opportunities in the future, including identifying individuals or departments to whom the employees can express interest in similar job opportunities.
The post-selection notice must be provided to at least the employees with whom the candidate will regularly work.
The EPEWA amendments also expands the damages for a wage discrimination claim to allow recovery of back pay for up to six years instead of three years, and requires the CDLE to create an investigation and formal mediation process for wage discrimination complaints.
Senate Bill 23-111 – Public Employee Protections
Senate Bill 23-111, also known as the “Protection for Public Workers Act” (“PPWA”) affords rights to public employees that are similar to those guaranteed to private employees under the National Labor Relations Act (“NLRA”) and Colorado Labor Peace Act (“CLPA”). The NLRA and CLPA apply to union-member employees in private workplaces, as well as some protections which extend to non-union employees, including freedom from retaliation for engaging in “concerted protected activity.”
Under SB 23-111, public employees are now protected from discrimination, interference, or retaliation when they engage in certain workplace activity. Such activities include:
- Discussion or expression of views regarding public employee representation, workplace issues, or their rights;
- Engaging in protected concerted activity for the purpose of mutual aid or protection;
- Fully participating in the political process while off duty and not in uniform, including i) speaking with members of the public employer’s governing body on terms and conditions of employment and any matter of public concern; and ii) engaging in other political activities in the same manner as other citizens; or
- Organizing, forming, joining or assisting an employee organization or refraining from organizing, forming, joining, or assisting an employee organization.
Importantly, the PPWA allows public employees to speak with members of their employer’s governing body (i.e., the Board of Directors) regarding the terms and conditions of their employment and any matter of public concern, as long as such discussions occur while the employee is off-duty and not in uniform at the time. The PPWA specifies that employers may limit employee rights “if necessary to maintain the non-partisan role of the employer”; however, it is unclear what this language was intended to convey. It is also unclear how the rights granted under the PPWA will interact with potentially contradictory terms of collective bargaining agreements in those public employer workplaces with recognized unions.
Finally, it is important to know that at the time of signing SB 23-111 into law, Governor Polis issued a corresponding Signing Statement aimed at limiting the potentially broad scope of the bill. Governor Polis stated that provisions of SB 23-111 must be clarified in the future to ensure that public employers can continue carrying out their mission and maintain the ability to enforce workplace policies and job performance. The Signing Statement directs CDLE to adopt new rules clarifying that employers can manage and discipline employees as needed in light of SB 23-111. Certain workplace issues, such as active investigations into personnel matters, will likely still warrant protection from disclosure or discussion. For example, employees may still be precluded from discussing active investigations with coworkers to preserve the integrity of the investigatory process. Public employers should review their handbooks or employment policies and make any necessary updates to policies that may limit contact between employees and the governing body. The enforcement mechanisms outlined in the statute become effective in July 2024.
Senate Bill 23-172 – POWR
The Protecting Opportunities and Workers’ Rights (“POWR”) Act makes significant changes to the Colorado Anti-Discrimination Act (“CADA”), effective August 7, 2023.
Changes to Definition of Harassment
POWR redefines workplace “harassment,” using a reduced standard and rejecting the past “severe and pervasive” standard that a plaintiff was required to prove in order to prevail on a claim of harassment under the CADA. The severe and pervasive standard required the plaintiff to show that the harassment they endured was so severe and pervasive that the terms and conditions of their employment were altered. Usually, this meant proving constant or near-constant harassment and/or harassment that was egregious in nature (rather than passing discriminatory comments, off-color remarks, or isolated instances of harassment). Under POWR, an employee need only show that the allegedly harassing conduct was both subjectively offensive and objectively harassing, in that any reasonable person in the employee’s protected class would have felt offended by the conduct. POWR further contains various enumerated factors to assist employers in determining whether conduct rises to the level of unlawful harassment, such as the place in which the conduct occurred, the duration of the conduct, the existence or absence of a power differential between the parties, and more.
Although the standard for legal claims is reduced, it must still fall within one of the following three categories to be actionable:
- Submission to the conduct or communication is explicitly or implicitly made a term or condition of the individual’s employment;
- Submission to, objection to, or rejection of the conduct or communication is used as a basis for employment decisions affecting the individual; or
- The conduct or communication has the purpose or effect of unreasonably interfering with the individual’s work performance or creating an intimidating, hostile, or offensive working environment.
POWR also codifies existing case law that has held that “petty slights, minor annoyances, and lack of good manners do not constitute harassment,” unless the slights, annoyances, or lack of manners, when taken individually or in combination under the circumstances, meet the definition of harassment set forth above.
POWR also codifies and slightly redefines the affirmative defense to claims of harassment by a supervisor, by requiring the employer to establish that it has a program that is reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment. To establish the existence of such a “program”, an employer must demonstrate it takes reasonable actions to investigate the alleged unlawful conduct and it takes prompt and reasonable remedial action to address complaints of harassment. The employer also must be able to show that they communicated the existence and details of this “program” to all supervisory and nonsupervisory employees, and that the employee claiming to have been harassed unreasonably failed to take advantage of such program by, for example, failing to report the conduct.
Changes to Reasonable Accommodations for Disabilities
POWR also adds a new standard for determining if reasonable accommodations of a disability are required. Previously, a disability that had “a significant impact on the job” would not require accommodation. Now, to deny a request for a reasonable accommodation, an employer must show that no reasonable accommodation “would allow the individual to satisfy the essential functions of the job.”
Restrictions on Nondisclosure Requirements
POWR specifies the requirements that must be satisfied for a nondisclosure provision in an agreement between an employer and an employee or a prospective employee to be enforceable. Such non-disclosure agreements must be mutual and cannot preclude an employee from disclosing the underlying facts of the alleged harassment to third parties, including the existence and terms of a settlement agreement to specific third parties, such as “immediate family members” and medical providers.
Record Keeping
Employers must maintain personnel and employment records for at least five years and, with regard to complaints of discriminatory or unfair employment practices, maintain those records in a designated repository.
House Bill 23-1006 – Income Tax Credit Notification
HB 23-1006 requires employers to notify employees of the availability of the federal earned income tax credit, the state earned income tax credit, the federal child tax credit, and the state child tax credit.
For income tax years beginning on January 1, 2023, in addition to annual tax statements that employers are already required to provide under applicable law, employers must provide written notice of these tax credits to their employees at least once annually. The written notice may be provided by e-mail or text message (or any other published written form) but must: (1) be written in English and any other language with which the employer usually uses to communicate with the specific employee; and (2) include any content that the department prescribes as necessary for an employer to meet the written notice requirement of this section.
“Employee” is defined broadly by the statute, to include officers of corporations and elected officials. However, the Act excludes independent contractors or volunteers, or those who have resided and worked in the state for less than 120 days in connection with television broadcasting or film.
HB23-1045 – Military Leave
Colorado’s military leave law was amended in March 2023. Now, public employees must be granted paid leave related to military or National Guard service for up to the equivalent of three weeks of work on the employee’s regular work schedule in the leave year established by the employer. Previously, employers were required to give up to 15 days paid leave. Employees in private industry are also guaranteed up to three weeks of military leave, though such leave is not required to be paid.
In both instances, employees returning from military leave must be restored to their previous, or similar, position and they must receive the same pay, status, and seniority as they had prior to military leave.
HB23-1076 – Expansion of Workers’ Compensation Benefits
Effective August 7, 2023, HB23-1076 amends the Workers’ Compensation Act of Colorado and expands the existing medical-impairment-benefits limit from 12 to 36 weeks. Further, when an employee’s temporary total disability benefits end, HB23-1076 allows the employee to ask to return to regular work with a doctor’s written release.
Conclusion
Federal and state courts and legislatures continue to impose new requirements for employers and change the employment law landscape. Employers must remain vigilant to these changes and confirm that their policies and practices comply with these new requirements. We anticipate the CDLE will issue guidance on many of these new state requirements later this year, hopefully offering some much needed insight and clarity to these new requirements. For any questions or assistance in addressing these new laws and reviewing or updating your policies, please reach out to Ireland Stapleton employment law attorney Michelle Ferguson.
Disclaimer: What is written here is for general information only and should not be taken as legal advice. If legal advice is needed, please consult an attorney.