Colorado Employment Law Changes 2023

In 2023, the Colorado Legislature changed the legal landscape applicable to employers and employees in the public and private sectors with multiple new laws. Here’s what you need to know about the new laws and when they go into effect:

Starting March 10, 2023

HB 23-1045—Employee Leave for Colorado National Guard Training.

The new law clarifies that both public- and private-sector employees are entitled to a three-week leave of absence (rather than a 15-day leave of absence) from employment in a calendar year for certain military service and training. Employees may use any available paid leave or take unpaid leave for the absence. The new law also repeals the requirement that a public employee not be mentally or physically disabled to be reinstated with a public employer.

Starting August 7, 2023:

SB 23-017—Additional Uses for Paid Sick Leave.

Under the new law, an employee may use paid sick leave in more circumstances than previously allowed, including when 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;
  • 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 any other unexpected occurrence or event that results in the closure of the family member’s school or place of care; or
  • Evacuate the employee’s place of residence due to inclement weather, loss of power, loss of heating, loss of water, or any other unexpected occurrence or event that results in the need to evacuate the employee’s residence.

As a result of these changes, employers should consider updating their sick leave policies accordingly.

SB 23-111—Public Employees’ Workplace Protection Act.

Employees of governmental entities do not generally enjoy the same labor protections as those enjoyed by private sector employees. The Public Employees’ Workplace Protection Act aims to address that fact by granting a new set of rights to individuals in Colorado employed by counties, municipalities, fire authorities, school districts, charter schools, public colleges and universities, library districts, special districts, public defender’s offices, the University of Colorado hospital authority, the Denver health and hospital authority, the state general assembly, and a board of cooperative services. 

The new law grants public employees the rights to discuss and express views about workplace issues, start or join an employee organization, and participate in the political process while off duty (except to the extent necessary to maintain the nonpartisan role of a nonpartisan employer). The new law also prohibits certain public employers from retaliating against employees who exercise those rights. The Colorado Department of Labor and Employment is charged with enforcing the new law. Some portions of the new law become effective on August 7, 2023, while other portions become effective on July 1, 2024. Public employers should consider familiarizing themselves with these laws and discussing them with their legal counsel.

SB 23-172—Protecting Opportunities and Workers’ Rights Act (POWR).

POWR significantly expands the Colorado Anti-Discrimination Act applicable to employment discrimination claims and practices. POWR redefines “harassment”, changes what an individual must prove to allege a discrimination claim against an employer, makes marital status a protected class, modifies the employer exemption applicable to claims brought by disabled individuals, and alters the affirmative defenses an employer may assert in a discrimination claim. In addition, POWR voids certain types of nondisclosure agreements and allows for related monetary penalties. POWR also imposes new employer recordkeeping requirements related to discrimination or unfair employment practices. Given these changes, employers should consider revising their personnel policies, noncompete agreements, and recordkeeping to comply with POWR. 

For a more detailed discussion of the new act, read Three Things To Know About Colorado’s New POWR Act.

HB 23-1076—Workers’ Compensation amendments.

HB 23-1076 amends Colorado’s Workers’ Compensation laws. Most notably, the new amendments increase the limit on medical impairment benefits based on mental impairment from 12 weeks to 36 weeks.

Starting January 1, 2024:

SB 23-105—Ensure Equal Pay for Equal Work Act.

The Colorado Equal Pay for Equal Work Act prohibits employers from wage discrimination based on an employee’s gender and requires employers to comply with job posting and promotional notice requirements. SB 23-105 amends the Equal Pay for Equal Work Act to address concerns about unclear provisions and ensure compliance with the law. 

Before selecting a candidate. An employer must post a “job opportunity” on the same day both inside and outside the company. A “job opportunity” is defined as a current or anticipated vacancy or newly created position for which the employer is considering a candidate or candidates or interviewing a candidate or candidates or that the employer externally posts. A “job opportunity” does not include career development or career progression. “Career development” means a change to an employee’s terms of compensation, benefits, full-time or part-time status or duties, or an update to an employee’s job title or compensation to reflect work performed or contributions already made by an employee. “Career progression” means a regular or automatic movement from one position to another based on time in a specific role or other objective metrics.

When posting a job opportunity, an employer must in good faith include the following information:

• • Specific compensation information such as the hourly rate or salary or range of the hourly rate or salary;
  • A general description of the benefits and other compensation applicable to the job opportunity; and
  • The date the application window is anticipated to close.

If, however, an employer is only physically located outside of Colorado and has fewer than 15 employees working in Colorado, all of whom work only remotely, then, through July 1, 2029, the employer is only required to provide notice of remote job opportunities.

After selecting a candidate. Within 30 days after the selected candidate begins working in the position, the employer must make reasonable efforts to announce, post, or otherwise make known to the employees with whom the selected candidate is expected to work:

• • The name of the candidate selected for the job; 
  • 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.

For positions with career progression, the Equal Pay for Equal Work Act now requires an employer to disclose and 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.

The new law does not require employers to identify a selected candidate for a job opportunity in any manner that violates the candidate’s privacy rights or would place the candidate’s health or safety at risk.

Enforcement. The State Division of Labor Standards and Statistics in the Department of Labor and Employment enforces the Equal Pay for Equal Work Act. The law now requires the Director of the division to create and administer a process to accept and mediate wage complaints, to provide legal resources concerning alleged wage inequity, and promulgate rules as necessary for this purpose. The Director is also required to investigate complaints or other leads concerning employer violations of wage inequity and, upon finding a violation, order compliance and, if necessary, relief, including up to six years of back pay.

With these changes, employers should evaluate their job posting and post-hire announcement process to ensure compliance with the law.

Starting July 1, 2024:

SB 23-058—Job Application Fairness Act (JAFA).

Starting July 1, 2024, JAFA prohibits employers from requiring a prospective employee to include the individual’s age, date of birth, and dates of attendance at or date of graduation from an educational institution on an initial employment application. An employer may, however, request an individual to provide additional application materials, including copies of certifications, transcripts and other materials created by third parties, if the employer notifies prospective employees that they may redact information that identifies their age, date of birth, or dates of attendance at or graduation from an educational institution. 

In addition, an employer may request an individual to verify compliance with age requirements imposed pursuant to or required by a bona fide occupational qualification pertaining to public or occupational safety, a federal law or regulation, or a state or local law or regulation based on a bona fide occupational qualification. Verification requests of this type must not require disclosure on an initial employment application of a prospective employee’s specific age, date of birth, or dates of attendance at or date of graduation from an educational institution.

The Colorado Department of Labor and Employment is charged with enforcing the new law and may impose civil penalties and enter other orders related to a violation of the restrictions discussed above. Given the new laws, employers should consider revising their job application materials consistent with the new law.