March 16, 2022 | Dianne Criswell

These policy changes from 2019 and 2020 should be on all special districts’ radars

In 2019 and 2020, members of the Colorado General Assembly, as well as statewide voters, made major policy changes in areas of employment practices and benefits which apply to special districts: the Healthy Families and Workplaces Act, the Equal Pay Act, the Public Health Emergency Whistleblower law, and the Family and Medical Leave Insurance program.

The implementation timelines for many of these changes have already passed – or have upcoming effective dates to consider as your district makes its employment benefits decisions or continues to monitor its employment and hiring practices.

Colorado’s Paid Leave Law

SB20-205, the Healthy Families and Workplaces Act (“HFWA”) requires that employers provide at least 48 hours of paid leave to employees regardless of type or status (not just full-time employees, for example). However, HFWA also took effect in 2020 for COVID-19-related leave requirements, known as the Public health Emergency (PHE) Leave. As of the publication date of this article, PHE Leave is still in effect.

An employee can file a complaint with the Division for unlawful retaliation or interference with rights; or, the employee can make a written demand to the employer. An employee making a written demand must wait 14 days before filing a claim in court against the employer for lost pay, for reinstatement, or for fines/penalties.

Paid Leave during a Public Health Emergency

For COVID-19/PHE Leave, starting on January 1, 2021, employers of any size (both public and private) were required to provide up to two weeks/80 hours of leave to employees in three categories relating to COVID-19:

• Having COVID-19 symptoms and seeking a medical diagnosis;
• Being ordered by a government agent, or advised by a health provider, to quarantine or isolate due to a risk of COVID-19; or
• Taking care of someone else due to COVID-19, including caring for another person ordered to quarantine/isolate or for a child whose school, place of care, or child care is closed.

The Division of Labor Standards & Statistics issued guidance on its website and in INFO #6C that, for the ongoing COVID-19 public health crisis in 2022, employees may still have PHE hours available to use if they did not use the leave in 2021. However, please note the following for 2022:

• Employees do not receive up to 80 hours of PHE Leave each time they have a COVID-related need; and
• Employees do not receive a new bank of PHE Leave in 2022, except for newly hired full-time employees;
• Employees may use PHE leave until four weeks after a PHE Leave ends.

HFWA Paid Leave

Beyond the COVID-19 public health emergency, SB20-205/HFWA, requires employers to comply with the on-going provisions of the law on January 1, 2021 (for 16+ employees) or January 1, 2022 (for 15 or fewer employees). By these effective dates, employers must have implemented leave policies which provide a minimum of 48 hours (for full time employees or equivalents) of paid leave and implemented other provisions of the law.

Additional Information and Resources on HFWA

For additional information, the Division of Labor Standards & Statistics issued guidance to employers in INFO #6B and INFO #6C, and has incorporated the provisions of HFWA into the Colorado Wage Protection Rules, codified in 7 CCR 1103-7. The overview document on the CSD Pool website, provides additional information and check-lists for members.

Colorado Equal Pay Act

SB 19-085, or the Colorado Equal Pay Act, was introduced to help address the gender-based pay disparities in Colorado and took effect for all employers on January 1, 2021. Under the Colorado Equal Pay Act, employers may not:

• Discriminate between employees on the basis of sex, or in combination with another protected status, by paying an employee of one sex less than an employee of a different sex for substantially similar work;
• Ask for prospective employee’s wage history and retaliating against a prospective employee who refuses to provide wage history;
• Retaliate against employees who ask about their wages or seek to compare their wages to those of other employees; or
• Prohibit employees from discussing or disclosing their wages.

Employees who believe they are being paid less due to their gender may file a civil lawsuit within two (2) years of the alleged violation and can seek up to three (3) years’ back pay.

The Colorado Equal Pay Act provides a good faith exception when there is an apparent or alleged disparity in pay. An employer’s good faith can be demonstrated when non-discriminatory factors (like geographic location, seniority, merit, regular travel, education, and experience) are considered in compensation. An employer can further show and document its good faith when setting employee compensation by completing regular pay audits to address any disparities in pay that cannot be reasonably based on these factors.

Additional Information and Resources on the Colorado Equal Pay Act

Many tools and training can help maintain compliance with the Colorado Equal Pay Act, including: a special salary survey for members co-sponsored by the CSD Pool and the Special District Association of Colorado (SDA); a SDA hosted webinar on October 22, 2020 on applying a salary survey; a CSD Pool hosted webinar on implementing the Colorado Equal Pay Act; and an overview document with checklists on the Colorado Equal Pay Act (and other topics) on the CSD Pool website. The Division of Labor Standards & Statistics also issued INFO #9 and the final Equal Pay Transparency Rules, 7 CCR 1103-13, effective January 1, 2021, both of which provide additional information and guidance to employers.

Public Health Emergency Whistleblower law (PHEW)

HB20-1415, the Public Health Emergency Whistleblower law (PHEW), is best understood in the context of the COVID-19 pandemic because the law prohibits a “principal” (a “principal” is any employers and any entity that contracts with five or more independent contractors) from retaliating against a worker who raises reasonable concerns regarding health or safety during a public health emergency.

A worker can file a complaint of retaliation or interference with the Division. After filing with the Division and if Division does not investigate, a worker may file a claim in court against the principal for lost pay, for reinstatement, and/or for fines/penalties.

The Division rules have been finalized as the Colorado Whistleblower, Anti-Retaliation, Non-interference, and Notice-Giving Rules, codified in 7 CCR 1103-11.

Family Medical Leave Insurance Program

At the November 2020 statewide general election, voters approved Proposition 118, a statutory change to Colorado’s laws which created a paid Family Medical Leave Insurance program (FAMLI). FAMLI requires employers and employees to pay payroll premiums, starting January 1, 2023, to provide up to twelve (12) weeks of paid FAMLI leave beginning January 1, 2024. Unlike the federal Family and Medical Leave Act (FMLA), the new Colorado FAMLI requirement applies to employers of any size with the following exceptions: (1) employers may apply to the Division of Family Medical Leave Insurance to provide leave through a private plan that meets the requirements of FAMLI; or (2) local governments, including special districts, may decline to participate (the “Local Government Opt-Out”).

The Division of Family Medical Leave Insurance now has an active webpage and at the time of the publication has begun its rulemaking.

Please keep FAMLI in on your radar as 2022 moves forward. Your district will either need to participate in the program, opt-out, or apply for a waiver for a similar benefit plan or coverage which it already provides to employees, depending on the final rules of the Division of Family Medical Leave Insurance.

These new laws take time, care, attention – and sometimes new resources – to implement. Your district is not alone in facing these challenges as you comply with these laws and implement the new ones that are coming up on the horizon. Don’t forget that there are resources to help, including the CSD Pool HR resources which are provided as a member benefit:

• 1) CSD Pool HR Helpline has prepaid Legal services via phone or email conferring with a dedicated legal expert through the HR Helpline or
• 2) utilizing ten (10) hours of consultation with CPS-HR.