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Colorado has recently passed five bills that will impact how employers handle personnel files, worker classification, work status verification, employment of disabled workers, and employee whistleblowing. In addition, a sixth law amends the Colorado Anti-Discrimination Act to address accommodations for pregnant workers. Below are key provisions from each law and relevant action items.
Colorado Anti-Discrimination Act Amended to Address Pregnant Workers
On June 1, 2016, the Colorado Anti-Discrimination Act (“CADA”) was amended to broaden protections for pregnant workers. This expands the protections offered under the federal Americans with Disability Act (“ADA”), which requires reasonable accommodation and prohibits discrimination against individuals with pregnancy-related conditions that constitute a disability, or limitations that arise from the interaction of pregnancy and an underlying impairment. CADA takes this a step further by widening the scope to “any health conditions related to pregnancy or the physical recovery from childbirth.” For example, a woman who has difficulty standing for extended periods of time due to her pregnancy may require an accommodation under CADA.
Thus, employers with pregnant workers should take care to engage in the interactive process of determining what reasonable accommodations can be provided. Examples include allowing an employee more frequent restroom breaks, modifying the work schedule, providing or modifying seating, or temporary transfer to a position with lighter duties or less strenuous labor involved. Note that employers cannot force an employee to take leave if the employer is able to provide another reasonable accommodation.
As always, employees cannot be retaliated against for requesting or making use of an accommodation. Employers are prohibited from taking any adverse employment action (e.g., termination or demotion) against applicants or employees who request or use an accommodation. However, employers are not expected to provide accommodations that impose an “undue hardship” as defined under the ADA.
On and after the effective date of August 10, 2016, Employers must inform new employees of their rights by written notice at time of hire. For current staff, employers have a grace period of until December 10, 2016 to provide written notice of employee rights. Lastly, employers must display the written notice in a conspicuous location easily accessed by employees.
- Contact ManagEase at (888) 230-3231 for assistance in revising handbook policies and procedures regarding leave and accommodation policies.
- Provide a written for distribution to new hire starting August 10, 2016, and distribute to all current staff by December 10, 2016. Obtain a signed acknowledgment from each employee.
- Prepare the workplace posting and display by August 10, 2016.
- Train managers on the interactive accommodation process and anti-retaliation provisions.
Employees Can Now Access Their Personnel Files
Effective January 1, 2017, employees of private Colorado employers have the right to review their personnel files at the worksite, at a time mutually convenient for employer and employee, at least once per year. Former employees can review their files once after separation from employment. Employers are permitted to designate an employee to be present during file viewing and may charge current and former employees the production cost for copying documents from the files.
“Personnel file” means records that determine the employee’s qualifications for employment, promotion, additional compensation, or disciplinary action. Documents that do not qualify as personnel files may include:
- Documents that must be kept in a separate file (e.g., medical information, I-9);
- Confidential reports from previous employers;
- Documents that identify a person who made a confidential accusation against the employee who is reviewing the file; and
- Documents related to an active criminal or disciplinary investigation, or an active investigation by a regulatory agency.
Public employees already have access to their records under the Colorado Open Records Act. Furthermore, this law does not apply to financial institutions chartered and supervised under state or federal law, such as banks, credit unions, or trust companies.
- Implement a procedure for personnel file review, including designation of a witness, if desired.
- Train staff who handle personnel files (including the witness) on your organization’s file review procedure and the law’s requirements for which documents can and cannot be provided.
- Contact ManagEase at (888) 230-3231 for assistance in revising handbooks or policy documents to include language on personnel file review.
New Classification Guidance Coming Soon
Effective August 10, 2016, the Colorado Department of Labor and Enforcement has been directed to develop further guidance for employers on determining if a worker is an employee or independent contractor for unemployment purposes. An individual will also be appointed as a resource for classification and compliance audits in the new guidance.
- Look for further guidance from the Colorado Department of Labor and Enforcement.
- In the interim, review the U.S. DOL guidance on independent contractors.
Legal Work Status Affirmation Requirements Removed
Effective August 10, 2016, employers will no longer be required to attest in writing to a worker’s legal work status within 20 days of hire. Colorado employers can phase out use of the additional affirmation form and will no longer need to retain copies of the identity/work authorization documents after the effective date. However, employers should still retain all documentation for active employees hired before August 10, 2016.
- Eliminate work affirmation procedures from onboarding processes, but be sure that all requirements for completion of the federal I-9 are still obeyed.
Law Strengthens Support for Workers with Disabilities
Effective July 1, 2016, the Colorado Department of Labor, Department of Health Care Policy and Financing, Department of Higher Education, and Department of Human Services have been directed to collaborate on creating an “employment first” policy to support the ability for disabled individuals to be employed in the general workforce, rather than specialized work settings geared towards the disabled.
The bill does not require employers to give hiring preference to disabled individuals, but instead creates a multiagency approach to strengthen support available to employers who do hire and employ disabled persons. For more information about the objectives of the employment first policy, review the bill online here.
Whistleblowing Protection Expanded for State Employees
Effective June 10, 2016, state employees will now be protected from retaliation or discipline for disclosing confidential information about state operations or conduct, if the information is first disclosed to a whistleblower review agency.
The review agency will determine if the information is confidential, and if it is likely the information will be released to the public, the agency will notify the owner of the information of its determination as to (1) whether the information is considered confidential, and (2) the likelihood it will be released to public. The owner can then seek an injunction to block the release of information. The agency will also notify the disclosing employee’s supervisor upon receipt of the information, and remind the supervisor that retaliatory action is prohibited.
Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.
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