For many of us, the pandemic and other events since March 2020 changed where we work, when we work, how we work, and, in some cases, with whom we work.
Laws have changed, too, and it’s important that employee handbooks reflect these new realities. Inconsistent notice and application of your company policies can lead to trouble when you need to implement them. Communicating and acting on “the general gist” of a company rule and the law won’t suffice when problems arise, so we recommend reviewing and updating this mundane but critical document. This way, everyone is clear of the rules and expectations.
Here are four elements to which you should give particular attention and seek counsel to adjust as necessary.
Colorado legislators and the governor were busy last year responding to COVID-19, and one of the more significant laws they enacted requires employers to grant up to 48 hours of annual paid sick leave for all employees. The law mandates that leave accumulates at one hour for every 30 hours worked.
Reasons to take sick leave are broad. They include the employee or a family member needing preventive care, or a diagnosis or treatment for “a mental or physical illness, injury, or health condition,” as well as suffering domestic abuse, sexual assault, or harassment. Particularly important is that sick leave can be taken to care for a child if schools or daycares are closed due to a declared public health emergency.
The new law also requires employers to make available up to 80 hours of public health emergency leave for full-time employees. This article provides more information on the Colorado Healthy Families and Workplaces Act.
New Protected Classes
Colorado laws prohibiting racial discrimination now protect against actions aimed at an employee’s hair, including “hair texture, hair type, or a protective hairstyle commonly or historically associated with race, such as braids, locks, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps.”
Additionally, Colorado’s civil rights laws now prohibit discrimination against individuals due to their gender identity or gender expression. According to the new law, “‘gender expression’ means an individual’s way of reflecting and expressing the individual’s gender to the outside world, typically demonstrated through appearance, dress, and behavior … ‘Gender identity’ means an individual’s innate sense of the individual’s own gender, which may or may not correspond with the individual’s sex assigned at birth,” the law states.
Colorado’s Equal Pay for Equal Work law was passed in 2019 and went into effect at the beginning of 2021. This law mandates that employers pay equal wages to employees who do substantially similar work. Further, employers should know that the law bars:
- Seeking or relying on the wage rate history of a prospective employee to determine a wage rate.
- Taking actions against employees who discuss or compare their wages.
The new law also requires vacant positions be posted, which may require updates to hiring policies outlined in your handbooks as well.
Masks and Vaccines
Nationally, these have been the most controversial issues, but here is what you need to know for Colorado.
The Public Health Emergency Whistleblower Act provides workers with the right to wear personal protective equipment on the job.
Vaccines may seem like a trickier issue, as employers have to balance complying with two distinct federal laws: Title VII of the Civil Rights Act and the Americans with Disabilities Act. While employers may mandate vaccines, they must provide religious and medical accommodations when appropriate. Title VII could exempt employees citing religious objections from vaccine mandates, and the ADA may do the same for employees with a medical condition that prevents vaccination. Both laws are subject to an undue hardship or undue burden analysis, respectively, so it is essential to seek legal assistance when an employee seeks an exemption for one of these reasons.
Title VII and the ADA are not new laws; however, in light of the COVID-19 pandemic and new policies employers are implementing to ensure safe workplaces, we have seen some new applications of these existing laws. It is important to review your handbook to ensure that you have clear policies addressing religious and medical accommodations.
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While employers may not be keen about these new laws, there are ways to customize your employee handbook to your company’s particular needs. On the sick leave policies, for example, we have seen employers embrace the bare minimum, while others view more leave time as a way to reward employees or differentiate themselves in a tight labor market. Others elect to use existing leave programs to comply with the new laws, but the new laws contain nuances that require adjustments to existing policies.
The important thing is to dig out the current handbook and review it with an eye toward the new law changes so that you are acting within the law and your employees know what to expect.
If you do not have an existing employee handbook, now is the time to adopt one. Handbooks are essential documents that clearly outline how to proceed when the going gets tough.
Sarah H. Abbott is a business, regulatory, and real estate attorney in Ireland Stapleton’s Grand Junction office.
Mamie Ling is a litigation attorney in Denver representing clients in retail and hospitality, real estate, construction, transportation, and public entities in matters involving contractual disputes, products liability, construction defect, governmental immunity, and premises liability.
David S. Manush of the Denver office focuses on construction law and professional liability matters, in which he advises and defends architects, engineers, and other construction professionals in all areas of litigation in state and federal court.
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.