New employment laws for 2021 take effect

New laws taking effect in Colorado as of January 1 will affect how businesses pay their employees, how they must post job openings, and how much leave they must offer.  Here are some highlights:

Equal pay for equal work

Equal pay for equal work has long been an issue for employees, in particular women, who earn less than men even when doing the same work. The new Colorado law strengthens federal law and requires employers to pay employees the same wage for the same or similar work, regardless of gender. The new statute also authorizes audits and an adjudicatory process through the state Department of Labor and Employment in cases where unequal pay is alleged. In addition, companies may not ask job applicants for their prior salary history, a practice that has been used in the past to depress starting salaries for new employees.

Job posting requirements

Employers who post a job opening for a position that is based in Colorado, or “could be done” in Colorado, must notify the other employees at that place of employment. The notification must include the pay range, the benefits offered, and the position requirements. This requirement also includes a position that comes open due to an internal promotion. Regarding the “could be done” in Colorado language, this could end up requiring many more positions to be posted, given the expansion in remote work resulting from the COVID-19 pandemic.

Employers are not happy about having to post salary/wage ranges, as this could inform competitors of what the employer is paying and could reveal to lower-level employees that executives are earning many times what they earn. However, it could also create more opportunities for employees to learn about jobs they may be qualified for, which could ultimately benefit employers who want to make use of employees’ skills and talents.

Family leave requirements

Under the Healthy Families and Workplaces Act (HFWA), beginning January 1, 2021, employers in Colorado with more than 16 employees must provide paid sick leave. Starting January 1, 2022 the law will apply to all Colorado employers with fewer than 16 employees.

         Benefit and Eligibility

Under HFWA, employees earn at least one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours in a year. Of course, employers are free to grant more than this, and if they already grant at least the minimum of 48 hours in a year, need not grant any additional time. Employers may also grant the leave in a block at the beginning of the year rather than accruing it over time. Employees will begin to accrue leave upon starting employment and may use it as it is accrued.

        Uses of sick leave

The HFWA sets out the purposes for which an employee may use paid sick leave:

• The employee’s own physical or mental illness, condition, or injury
• The employee needs leave to see a doctor, receive care or treatment of a physical or mental illness or condition or receive preventive care
• Care for a family member with the above needs
• Related to sexual assault, domestic abuse, or harassment, the employee or a family member must
  • seek medical attention to recover from physical or mental illness or injury caused
  • obtain services from a victim services agency
  • obtain mental health or other counseling
  • seek legal services or prepare for a proceeding relating to the assault, abuse, or harassment
• In the event of a public health emergency, the employee’s workplace has been ordered closed, or the employee’s child’s school or daycare has been ordered closed and the employee must take care of his or her child

           How is HFWA leave taken?

Similar to the federal Family and Medical Leave Act (FMLA), employees may take paid sick leave in increments of less than a full day, down to one-hour increments. Employees must make their request for paid sick leave by any means acceptable to their employer, including in writing, electronically, or orally, and include the expected length of the absence, if that is known. As with the FMLA, if the leave is foreseeable, the employee should provide advance notice to his or her employer to the extent possible.

There is no requirement under the HFWA that employers pay an employee for accrued but unused sick leave at the time the employee leaves employment. However, if an employee returns and is rehired within six months of having departed, the employer must restore any accrued sick leave that the employee had prior to leaving that employer.

          What should employers do now?

Employers should take the following steps in order to be compliant with the new law, including:

• Employers must give employees written notice of their rights under HFWA, so they should work with counsel to develop compliant notices and provide training to managers on the law’s requirements.
• Employers should create and adopt a written policy that sets out notification procedures or add them to an existing employee handbook.
• Employers will be required to display a poster listing employees’ HFWA rights. Businesses can order a poster from the Colorado Dept. of Labor and Employment at this site: https://cdle.colorado.gov/posters-0; posters may also be available from commercial providers of labor/employment rights posters.
• Employers must maintain records that document for each employee the hours worked, paid sick leave accrued, and paid sick leave used. Employers must make these records available to the of Labor and Employment upon request.
• The Dept. of Labor and Employment has also issued an interpretive notice which can be found at https://cdle.colorado.gov/sites/cdle/files/INFO%20%236B%20%2812-1-20%29_%202021%20Paid%20Leave%20under%20HFWA_0_3.pdf

If you have additional questions, please contact Mark Spitz at Spitz Legal Counsel LLC, at mark@spitzlegalcounsel.comor by phone at 720.575.0440.