Colorado Employment Law Changes 2023

If you are a Colorado employer, you are likely subject to a number of new requirements implemented by Colorado that impact you and your employees this year. For example:

  • Employers are now required to provide paid sick leave and public health emergency leave to all Colorado employees. Employees must be notified of this new requirement.
  • As of January 1, 2023, Colorado employers and employees must contribute premiums to the FAMLI program, which will be available to begin paying benefits to employees beginning on January 1, 2024. Most eligible employees will receive up to twelve weeks of leave.
  • Employers must disclose compensation and benefits in job postings, notify employees of promotional opportunities and keep job description and wage rate records.

These rules have broad applicability to nearly all Colorado employers. Please read below for more details about what companies can do to implement compliance policies and processes.

Healthy Families and Workplaces Act (HFWA)

HFWA requires all employers in Colorado, regardless of size or industry, to provide paid sick leave to all employees (part-time, seasonal, temporary, etc.). Two types of paid leave are covered: 

(1) Accrued Leave: up to 48 hours of paid leave per year, for use for a variety of health and safety purposes, which employees earn at a rate of 1 hour for every 30 hours worked, up to 48 hours per year; and

(2) Public Health Emergency (PHE) Leave: up to 80 hours of paid leave per year when a PHE is declared. An ongoing PHE is currently in effect for a range of needs related to COVID-19.

The key points for employers are:

  • Unused accrued leave of up to 48 hours carries forward into a later year, but employers are not required to allow use of more than 48 hours by an employee in any single year.
  • During a PHE, employees are entitled to receive PHE paid leave, which supplements the employee’s unused, accrued leave at the time of request in the following amounts:
    • 80 hours of total leave for employees normally working 40 or more hours in a week; and
    • For employees normally working under 40 hours in a week, the greater of the number of hours the employee (a) is scheduled for work or paid leave in the fourteen-day period after the leave request, or (b) actually worked in the fourteen-day period prior to the declaration of the PHE or the leave request.
  • Employers must pay for leave at the same pay rate, and with the same benefits, as time worked.
  • Employers can’t impose consequences for taking leave, or require employees to find replacements. 
  • Employers must give employees individual written notices and display posters regarding HFWA rights.
  • Employers may be ordered to pay back wages, penalties and fines, and to change their policies, for violations.

Colorado employers should review their current leave policies and practices. Any type of policy can be used to comply if it satisfies the minimum requirements of HFWA and the applicable rules. Employers can implement standalone HFWA policies or use new or modified PTO policies (applicable to HFWA sick leave and vacation or other types of leave).

Paid Family and Medical Leave Insurance (FAMLI)

FAMLI is a state-run insurance program intended to ensure all Colorado workers have access to paid leave in order to take care of themselves or their family during life circumstances that pull them away from their jobs — like growing their family or taking care of a loved one with a serious health condition.

Employers were required to notify their employees about the FAMLI program and begin collecting premiums from all employees on their payroll (including full-time, part-time and seasonal) starting on January 1, 2023. Employers and their employees are both responsible for funding the program and may split the cost 50/50. The premiums are set to 0.9% of the employee’s wage, with 0.45% paid by the employer and 0.45% paid by the employee. Businesses with nine or fewer employees do not have to contribute to the program but do need to remit their employees’ share (0.45%) of the premium on behalf of employees each quarter. This can generally be done through payroll deductions. FAMLI will start providing benefits to employees beginning January 1, 2024. Most eligible employees will receive up to twelve weeks of leave. Those who experience pregnancy or childbirth complications may receive an additional four weeks.

Colorado employers should check with their payroll service providers to ensure that the appropriate payroll deductions are being made. Additionally, employers should review their leave policies and practices prior to January 1, 2024 to ensure compliance with FAMLI leave.

Equal Pay for Equal Work Act and Equal Pay Transparency Rules

All employers that employ at least one person in Colorado and all the employees of those employers are covered by new duties to include compensation in job postings, to notify employees of promotional opportunities, and to keep job description and wage rate records.

Employers must include in each job posting (1) the rate of compensation (or a range thereof), including salary and hourly, piece, or day rate compensation; (2) a general description of any bonuses, commissions, or other compensation; and (3) a general description of all benefits the employer is offering for the position. An employer may post compensation as a range from the lowest to the highest pay it actually believes it might pay for the particular job, depending on circumstances such as employee

qualifications, employer finances, or other operational considerations. It should be noted that employers are not required to post jobs, or have job postings, except as needed to notify existing employees of promotional opportunities (covered below). Compensation and benefits must be disclosed only if an employer chooses to have a job posting.

Employers must “make reasonable efforts to announce, post, or otherwise make known all opportunities for promotion to all current employees on the same calendar day and prior to making a promotion decision.” A promotional opportunity exists “when an employer has or anticipates a vacancy in an existing or new position that could be considered a promotion for one or more employee(s) in terms of compensation, benefits, status, duties, or access to further advancement.” All notices of promotional opportunities are considered “job postings” and therefore must include the compensation and benefit information required for any job posting.  Notices must also include the job title or a description of the position, and the means by which employees may apply for it. Notice of a promotional opportunity must be: (1) in writing (which can be electronic, such as an email or intranet posting); (2) by any method(s) reaching all employees; (3) to all employees for whom it may be a promotion, on the same calendar day; and (4) sufficiently in advance of the hiring or promotion decision that employees receiving notice may apply. No particular manner of notice is required, as long as the employer chooses a method by which all covered employees can access the promotional opportunity notice within their regular workplace and tells employees where to find the notice.

For each employee, an employer must keep records of the employee’s job description and compensation, including salary or hourly wage, benefits, and all bonuses, commissions, and other compensation received, for the duration of the employee’s employment plus two years. The records must include any changes to the employee’s job description or compensation over time.

Violating employers may face fines of $500 to $10,000 for each violation.

Colorado employers should review their hiring processes and develop policies and practices to create and utilize compliant job postings, review all job openings to identify promotion opportunities and maintain compliant employment records.

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