skip to Main Content
KPA Logo

Workplace Compliance News & Resources
for the Mountain States

Below is a round-up of workplace safety news for states in the Mountain region that employers need to know to keep their business compliant.

Stay on top of safety and compliance the right way with this information but be sure to seek legal counsel when you’re looking for how these changes will directly impact your business. Wherever available, KPA products are updated with the latest government notices and posters for employers.

Arizona

Effective Immediately: Arizona Changes Workers' Compensation Reporting Provisions

Who: Arizona employers

When: Effective immediately

Arizona SB 1403 took effect on September 24, 2022. A.R.S. §23-1061(N) amends the workers’ compensation reporting provisions. It applies to insurance companies and/or self-insuring employers in cases where an injured employee submits written notification of their intention to file a workers’ compensation claim. In such cases, the organization must forward the written notification to the Industrial Commission of Arizona (ICA) within seven business days of receipt. They must also inform the affected employee that they must submit a claim with the Commission per A.R.S. §23-1061(A).

The amendment also applies to cases where there is an existing injury, but the worker has not yet filed a claim.

How:

  • Update your documentation as needed to reflect the requirements of the amended law.

Additional Resources:

SB 1403

A.R.S. § 23-1061(N)

A.R.S. § 23-1061(A)

Arizona Worker’s Report of Injury Form

Industrial Commission of Arizona

Effective July 22: Arizona Amends Data Breach Notification Law

Who: Arizona employers

When: Effective July 22, 2022

What: On July 22, 2022, Arizona employers that experience a known data breach that impacts more than 1,000 Arizona residents must notify the Arizona Department of Homeland Security, Arizona attorney general, and the three largest consumer reporting agencies. Notification must be made within 45 days of determining there has been a breach. The amendment added the Arizona Department of Homeland Security to the list of agencies that must be notified of the breach.

How:

  • Update your policies and procedures as needed to incorporate the new notification requirement.

Additional Resources:

HB 2146

Arizona’s Data-Breach Notification Law FAQ

Tucson, Arizona Implements Minimum Wage Ordinance

Who: All Tucson, Arizona employers

When: Effective immediately

What: The Tucson Minimum Wage Act (Proposition 206) requires employees be paid a minimum wage of $13.00 per hour and is effective April 1, 2022, through December 31, 2022. The law covers individuals who work at least five hours per workweek within the city limits. It also covers tipped employees who customarily receive more than $30 per week in tips. Employers may take a maximum tip credit of $3 per hour, and wages plus tips must equal at least the minimum wage.

The Act includes a number of additional provisions employers need to be aware of, including:

  • Expansion of the definition of time worked;
  • Limits on taking deductions from pay;
  • How to determine if employees are covered;
  • Prohibition of paying wages using certain instruments;
  • Requirements about when to pay for a minimum number of hours worked;
  • Notice of employees’ rights under the law;
  • Prohibition against employer retaliation;
  • How to file a complaint; and
  • Potential penalties for violations.

Time worked includes being subjected to security checks immediately before or after a shift; being required to be at the employer’s worksite or any other prescribed work site; and being required to be logged in and actively attentive to an employer-provided computer program, phone app, or any similar device.

Employers may not take deductions from pay if it will result in the employee receiving less than the minimum wage.

To determine if a worker is covered, the Act adopts the worker-friendly “ABC test” for a new category called “worker for hire.” A worker for hire is subject to the minimum wage law. A worker for hire is a person who is not an employee or a contractor and works at least five hours in a workweek unless the hiring entity can show that the worker:

  • Is free from control and direction of the hiring entity;
  • Performs work outside of the usual course of the hiring entity’s business; and
  • Is engaged in an independently established trade, occupation, or business of the same nature as the hiring entity.

Under the law, employers may not pay wages by way of a pay card, reloadable debit card, or any means that requires the employee to have a Social Security Number.

Employers with 26 or more employees (including those who work outside city limits) must pay a minimum of three hours’ pay when the employee was scheduled to work at least three hours and either 1) the employee reports for duty and can work the shift but is released from duty before the three hours is up or 2) the employer cancels the shift with less than 24 hours’ notice.

Employee rights under the law are to be paid the minimum wage per hour, to be paid for all hours worked, and to be given notice of their rights. Employers may not take adverse employment action against employees for exercising their rights. There is a rebuttable assumption of retaliation if the adverse action took place within 90 days of the employee exercising their rights.

The Act establishes a City Department of Labor Standards, which will implement and enforce the Act. To file a complaint about a violation, any person or organization may contact the City of Tucson’s Labor Standards Unit. The City may assess civil penalties of up to $100 per day per employee, cease and desist orders, and liability for back pay.

The minimum wage is scheduled to increase again on January 1, 2023, to $13.50 per hour, and each year thereafter on January 1.

How:

  • Post the Tucson Minimum Wage Poster.
  • Analyze potential legal consequences before disciplining any employee who cannot fulfill your pay card requirements.
  • Review your current and proposed policies to ensure compliance with the law.

Additional Resources:

Tucson Minimum Wage Poster (English)

Tucson Minimum Wage Poster (Spanish)

City of Tucson Minimum Wage Act

Colorado

Effective July 1, 2023: Colorado Releases Privacy Act Rules

Who: Covered Colorado businesses

When: Effective July 1, 2023

On July 7, 2021, Colorado Governor Jared Polis signed into law Senate Bill 21-190, effective July 1, 2023, which established the Colorado Privacy Act (CPA). The law protects Colorado residents’ personal data when acting in an individual or household context, such as browsing the Internet. Colorado is the third state to implement a privacy law.

The law applies to all entities, including nonprofits, that conduct business in Colorado or deliver commercial products or services targeted to residents of Colorado AND either:

  1. Process the personal data of more than 100,000 individuals in any calendar year; OR
  2. Derive revenue or receive discounts on goods or services in exchange for the sale of personal data of 25,000 or more individuals.

These entities are called “controllers.” It also applies to service providers, contractors, and vendors that manage, maintain, or provide services relating to the data on behalf of these companies. These entities are called “processors.”

The CPA does not apply to:

  • Financial institutions and affiliates subject to the Gramm-Leach-Bliley Act;
  • Air carriers subject to Federal Aviation Administration regulation;
  • National securities associations registered under the Securities Exchange Act;
  • Certain types of personal data maintained in compliance with specific federal privacy laws; or
  • Data maintained for certain governmental purposes.

The law requires Colorado businesses to advise consumers which personal data they’re collecting, how they share and sell that data, and how people can correct, delete, download, and transmit their data. They may not collect, store, use, share, or sell “sensitive data” without an individual’s express, freely given consent. Sensitive data is any data related to a person under the age of 13, biometric data, or data that reveals a person’s race, ethnic origin, religious beliefs, mental or physical health conditions or diagnoses, sexual activity, sexual preferences or orientation, or citizenship status.

In addition, businesses must minimize the amount of data they collect and store, avoid secondary uses of the data, use reasonable security practices to secure the data, respond to requests by individuals asserting the rights granted to them under the law, and conduct data protection assessments.

Colorado consumers have specific rights under the law:

  • The right to opt out from the sale of their personal data, or the use of it for targeted advertising and certain types of profiling;
  • The right to know if an entity is collecting personal data;
  • The right to access personal data that the entity has collected about them;
  • The right to correct or delete personal data; and
  • The right to download and remove personal data from a platform in a format that allows for its transfer to another platform.

After seeking public comments, the Colorado Attorney General adopted final rules related to the Colorado Privacy Act on March 15, 2023, effective July 1, 2023. The rules detail the mechanisms for universal opt-out, data protection assessments, and avoidance of profiling.

How:

  • Review your privacy practices and policies to comply with the law, including the collection of personal and sensitive data, agreements with data processors, privacy notices, internal retention policies, security policies, and procedures and mechanisms for verifying and fulfilling consumer requests.

Additional Resources:

Senate Bill 21-190

Final Colorado Privacy Act Rules

Colorado’s Rulemaking and Cost-Benefit Analysis Process

Colorado Quarterly FAMLI+ Premiums and Wage Reports Due April 30, 2023

Who: Colorado employers

When: Wage reports and premium payment due April 30, 2023

Colorado employers with one or more qualified employees must register their businesses in My FAMLI+ and submit their first quarterly family and medical leave insurance premium payment by April 30, 2023. There is a 30-day grace period, which extends the deadline to May 31, 2023.

Wages reports and premium payments are due quarterly. The Colorado Department of Labor offers options for inputting the data and gives employers various tools to submit wage reports.

How:

  • Submit your quarterly wage report and premium payment no later than May 31, 2023.

Additional Resources:

My FAMLI+ Employer Registration

Quick Reference Guide: Reporting Wages

Colorado Family and Medical Leave Insurance Program (FAMLI) Employers

FAMLI Premiums and Benefits Estimator

Effectively Immediately: City of Denver Passes Wage Theft Protection Ordinance

Who: Denver, Colorado employers

When: Effective immediately

Denver Mayor Michael Hancock signed Ordinance 22-1614 into law on January 10, 2023, which protects employees from wage theft. Wage theft includes a number of different crimes, such as minimum wage violations, worker misclassification, meal break violations, forcing someone to work without wages, or paying less than was agreed.

In addition to filing a legal complaint under the Colorado Wage Act with the Colorado Division of Labor Standards and Statistics, employees can now submit complaints of wage theft to a Denver city auditor. The current process can take months and limits the reimbursement amount. With the new process, the auditor can reinstate the employee and collect lost wages, as well as assign interest, damages, attorneys’ fees and costs, and penalties for noncompliance. Employees must file within three years of the alleged violation.

The city auditor has additional power to rectify wage theft, including pursuing entities “up the chain” from the worker, such as staffing agencies. In addition, the auditor has broad leeway to investigate a particular employer without a complaint if they have a “reasonable basis” to believe the employer committed wage theft.

Employers must keep payroll records for three years. An auditor can fine those that fail to provide a certified payroll up to $1,000, plus additional penalties for non-compliance. Employers must provide employees an auditor-approved notice in English and Spanish that states the Denver minimum wage, that wage theft is a crime, and that employees can submit complaints of wage theft to a Denver city auditor.

How:

  • Provide employees with the required minimum wage/wage theft notice.

Additional Resources:

22-1614 Ordinance

Denver Wage Theft Unit

Effectively Immediately: Colorado Increases Wage Theft Penalties

Who: Colorado employers

When: Effective immediately

SB22-161 amended the Colorado Wage Theft Law effective January 1, 2023. It increases the penalties for employers that do not pay employee wages on time. Wage theft is defined as the failure or refusal to pay earned wages, which also includes underpayment, employee misclassification, and deduction violations.

Penalties have increased from 1.25 times the wages owed up to $7,500 and .5 times wages owed over $7,500 to 2.0 times all wages owed, or $1,000, whichever is greater. If employees make a request for wages owed, or file a civil lawsuit or administrative claim with a labor department, employers must pay unpaid wages within 14 days. Willful failure or refusal to pay wages are violations subject to 3.0 times all wages owed or $3,000, whichever is greater.

The new law allows employees to make demands on their own behalf and on behalf of a group of similarly situated employees. The Colorado Division of Labor has the right to investigate and make rulings on a classwide and individual basis.

Employers must give employees notice within 10 calendar days of separation if they are going to deduct wages from final pay for unreturned company property. The notice must contain specific information as required by law.

If investigated, employers should respond in a timely manner.

How:

  • Pay employees in a timely manner.
  • Develop a compliant notice to give employees timely notice before appropriating final pay for unreturned company property.

Additional Resources:

SB22-161

Colorado Wage Act

Effectively January 1, 2023: Denver, Colorado Increases Minimum Wage

Who: Denver, Colorado employers

When: Effective January 1, 2023

Effective January 1, 2023, the minimum wage for employees in the City and County of Denver will increase from $15.87 to $17.29 an hour. The minimum wage for tipped food and beverage workers will increase to $14.27 per hour for those who earn at least $3.02 per hour in tips.

The minimum wage is based on the city’s minimum wage ordinance that took effect January 1, 2020, and is indexed to the Consumer Price Index for the Denver-Aurora-Lakewood area.

Employers should not rely on their zip code or mailing address to determine whether the work is performed in the City and County of Denver. To ensure compliance, employers should enter the applicable address in the city’s address finder to determine if they are subject to the city’s minimum wage law.

How:

  • Use the Denver Regional Address Finder on the city’s minimum wage website to determine if was performed within the boundaries of the City and County of Denver.
  • Post the Denver Minimum Wage poster in the workplace.

Additional Resources:

Denver The Mile High City Minimum Wage Website

Denver Minimum Wage Poster English Spanish

Effectively January 1, 2023: Colorado Implements Paid Family and Medical Leave Insurance (FAMLI) Program

Who: Colorado employers

When: Effective January 1, 2023

Colorado voters passed Proposition 118 in November 2020, which created the Family and Medical Leave Insurance (FAMLI) Program. Starting on January 1, 2023, Colorado employers must collect a percentage of employees’ wages to fund the new state-run Colorado Family and Medical Leave Insurance (FAMLI) Program. Employers with 10 or more employees must also contribute to the fund. Employers that have less than 10 employees are not required to pay the employer share of the premiums. Self-employed individuals are also eligible to participate.

The Colorado Department of Labor and Employment released the final regulations on benefits for the FAMLI program on August 26, 2022, which detail how to qualify for leave, length of leave, how to apply, and employee notice requirements. Employers who provide a private plan that provides benefits equal to or greater than the state’s program are exempt from remitting the premium to the state.

Beginning January 1, 2024, eligible employees will be entitled to take 12 weeks of paid FAMLI leave for the following reasons:

  • To care for the employee’s serious health condition;
  • To care for the employee’s family member’s serious health condition;
  • To care for a new child during the first year after the child’s birth, adoption, or placement;
  • To take “qualifying exigency leave” (related to the employee’s family member’s military deployment);
  • To take “safe leave” (when the employee or employee’s family member is the victim of domestic violence, stalking, or sexual assault, or abuse); and
  • To attend to complications with pregnancy or childbirth (which comes with an additional 4 weeks of paid leave, for a total of 16 weeks).

The term “family member” includes a child (whether biological, adopted, a stepchild, a child of a domestic partner, or a child to whom the individual stands in loco parentis), parent, spouse or domestic partner, grandparent, grandchild, or sibling of the employee or the employee’s spouse or domestic partner, plus any other individual with whom the employee has a significant personal bond that is like a family relationship.

Employees are eligible for benefits once they have earned $2,500 in Colorado wages from any combination of employers in the preceding year. This is different than the FMLA eligibility threshold of 12 months of employment. Self-employed individuals are eligible if they live and work in Colorado and opt into the coverage.

For employers with 10 or more employees, the premium is equal to 0.9% of the employee’s wages, with employer and employee each paying 0.45% of wages—though the employer can choose to cover some or all of the employee portion. For employers with fewer than 10 employees, the premium is solely the employee’s share: 0.45%. The wage base for premiums is capped at the Social Security wage base.

The FAMLI Division will adjust premiums each year based on contributions and cost of administration, up to a cap of 1.2% of wages. In general, wages are subject to the premium if the employee performs most or all of the services in Colorado. The law details other circumstances under which wages are subject to the premium. Premiums are due quarterly by the last day of the month immediately following the end of the quarter. The FAMLI Division will collect wage reports from employers and use those in part to determine premiums due.

FAMLI leave is job-protected leave, and the law contains an anti-retaliation provision that protects employees who exercise their rights under the law.

All Colorado employers must register with My FAMLI+, the state-run FAMLI portal, even if they intend to apply for an exemption. Employers must post the Colorado 2023 FAMLI Program Notice by January 1, 2023.

How:

  • Decide if you will participate in the state’s program or adopt a private plan.
  • Register with the My FAMLI+ employer service portal before January 1, 2023.
  • Notify employees that the deductions will begin January 1, 2023, and benefit availability begins January 1, 2024.
  • Budget for your estimated premium liability.
  • Monitor the Colorado Department of Labor and Employment website for additional guidance.
  • Post the required Colorado 2023 FAMLI Program Notice by January 1, 2023.
  • Provide notice to new employees upon hire.
  • Update your employee handbooks.
  • Ensure payroll is set up properly for FAMLI deductions.

Additional Resources:

FAMLI Webinar Series: Private Plans Part 1

Colorado 2023 FAMLI Program Notice Poster English

Colorado 2023 FAMLI Program Notice Poster Spanish

Colorado FAMLI Toolkit for Employers Website

Colorado 2023 FAMLI Employee Handbook

My FAMLI+ Employer Registration

FAMLI Premiums and Benefits Estimator

Effectively Immediately: Colorado Releases Unemployment Notice

Who: Colorado employers

When: Effective immediately

Colorado SB 22-234 was signed on May 25, 2022, which requires employers to give employees notice of the potential availability of unemployment insurance upon separation from employment. The Colorado Department of Labor and Employment (CDL) published a model form for employer use in September 2022, then released a revised form in October 2022. The revised form clarifies that employers may provide a hard copy or electronic copy of the unemployment notice; they do not have to provide both.

The notice explains to employees of the potential availability of unemployment insurance benefits. It contains the required details to comply with the law, with “reason the employee separated from the employer” being the most significant. Employers must accurately complete the form to protect against potential wrongful termination suits. They should consider creating in advance a list of categories personnel can use to complete the reason for separation field.

How:

  • Provide an unemployment insurance notice form to employees upon separation from employment.
  • Add the form to your termination procedures.
  • Train personnel who complete the form on how to be concise, accurate, and complete when explaining the reason for separation.

Additional Resources:

SB 22-234

Colorado Employer Employee Separation Form

Colorado Department of Labor and Employment Website

Colorado Expands Requirements for Unemployment Insurance Notice

Who: Colorado employers

When: Effective immediately

What: On May 25, 2022, Colorado Governor Jared Polis signed SB 22-234 into law, effective immediately. It updates the requirement for employers to provide a notice about unemployment insurance to each employee upon separation from employment. Preexisting law requires the notice to include:

  • A statement that unemployment insurance benefits are available to those who meet eligibility requirements;
  • Contact information related to filing a claim;
  • What information the former employee will need in order to file a claim; and
  • How to inquire about the status of the claim once it’s been filed.

SB 22-234 requires employers to include additional information, as follows:

  • Employer’s name and address;
  • Employee’s name and address;
  • Employee’s ID number or last four digits of the employee’s SSN;
  • Employee’s start and end dates;
  • Employee’s year-to-date earnings and wages for the last week worked; and
  • The reason the employee separated from the employer.

The notice may be hard copy or electronic. Employers must provide it to every employee at termination, regardless of the reason for separation. The Colorado Department of Labor and Employment will release a model notice. In the meantime, employers must create their own notice in order to comply with the law.

How:

  • Update your policies and procedures to comply with the law.
  • Monitor for release of the model notice by the Colorado Department of Labor.

Additional Resources:

Senate Bill 22-234

Colorado Department of Labor

Effective August 10: Colorado Further Limits Restrictive Covenants

Who: Colorado employers

When: Effective August 10, 2022

What: On June 8, 2022, Colorado Governor Jared Polis signed the Restrictive Employments Agreement Act HB 22-1317 into law. It amends Colorado’s non-compete statute C.R.S. § 8-2-113. The law becomes effective August 10, 2022, and applies to non-compete agreements entered into on or after the effective date.

The new law eliminated one previously applicable exception to the law and limits others. The exception that allowed for restrictive covenants on executive or management personnel has been eliminated.

The exception for protection of trade secrets has been modified to apply only to highly compensated workers—those that earn $101,250 or more in 2022. The earnings floor must apply at the time the covenant is entered into and when it is enforced in order for the covenant to be valid. In addition, the covenant must be “no broader than is reasonably necessary to protect the employer’s legitimate interest in protecting trade secrets.”

Another exception that the new law limits is the one for recovery of training expenses for employees who have been with the company for less than two years. Now the law specifies that the training must be “distinct from normal, on-the-job training.” Additionally, the ability to recover those expenses decreases in proportion to the amount of time the employee works for that employer after receiving said training.

Covenants that prohibit solicitation of customers must be no broader than is reasonably necessary to protect the employer’s legitimate interest in protecting trade secrets. This type of covenant can be enforced against employees that make 60% of the highly compensated worker threshold, which equates to $60,752 in 2022.

Overly broad confidentiality provisions may violate the new law. Employers should ensure their confidentiality provisions do not prohibit disclosure of information generally obtained through the job, information available to the public, and/or information employees have a right to disclose.

Employers must provide a notice to employees—separate from the restrictive document—that explains the significance of the covenant language and how it could affect their ability to secure employment in the future. A future employee must acknowledge it by signing the notice before accepting an offer of employment. Current employees must acknowledge the notice by signing it at least 14 days prior to the covenant going into effect.

For workers who primarily resided in Colorado at the time employment was terminated, Colorado law will govern the enforceability of restrictive covenants. To be valid, the covenant must not require adjudication outside of Colorado.

If a court finds the agreement to be invalid, it will be voided. Employers in violation are subject to financial penalties, including court fees, compensatory damages, and fines of up to $5,000 per employee with whom the employer enters into or attempts to enter into an invalid agreement, or when the employer attempts to enforce such agreement.

How:

  • Review your noncompete, non-solicitation, and confidentiality agreements and templates to comply with the law.
  • Update your employee handbook language to comply with the law.
  • Provide the required notice to employees.
  • Train HR personnel and managers on the new law.

Additional Resources:

HB 22-1317

Effective Immediately: Colorado Publishes Guidance on Payroll Deductions and PTO

Who: Colorado employers

When: Effective immediately

What: The Colorado Department of Labor and Employment published guidance on payment to employees for vacation and paid time off (PTO) upon separation and on deductions from pay. Previous case law established that employers must pay employees for their accrued, unused vacation pay upon separation from employment. INFO #14 clarifies several related issues:

  • “Vacation pay” is defined as leave that the employee can use at their discretion (as opposed to pay for a qualifying event like a public holiday).
  • Floating holidays that the employee takes to celebrate a specific holiday do not qualify as vacation pay, but a floating holiday that can be used entirely at the employee’s discretion does count as vacation pay.
  • The law applies whether the employer has a written policy or not.
  • True “unlimited” vacation does not trigger a required payment for vacation pay.
  • Use-it-or-lose-it vacation time policies are not allowed. Once the vacation pay is earned, the employer cannot force an employee to forfeit it.
  • Employers may cap earned vacation time until the employee falls below the cap.

INFO #16 clarifies when employers can take deductions from pay and when they can take credits against their pay, as follows:

  • No deductions allowed that would reduce the employee’s pay below minimum wage
  • Written agreement (can be an email authorization from the employee) required before deducting for some items, such as loans or services from pay
  • Deductions allowed for employee theft only if the company filed a police report
  • Deductions allowed for employee’s failure to return property or money; limited to property value only
  • No shifting responsibility for expenses from another party to the employee when it’s primarily to benefit the employer
  • Allowable credits toward the minimum wage: lodging credits, meal credits, and tip credits

How:

  • Review your policies and procedures to ensure compliance with the guidance.

Additional Resources:

Colorado Department of Labor INFO #14: Payment of Earned Vacation upon Separation of Employment (updated March 4, 2022)

Colorado Department of Labor INFO #16: Deductions From, and Credits Towards, Employee Pay (April 14, 2022)

Colorado Department of Labor Interpretive Notice & Formal Opinions (INFOs) & Other Published Guidance

Updated, Effective July 15, 2022: Colorado Paid Sick Leave Program to be Continued to be Provided by Employers

Who: Colorado employers

When: Effective immediately

What: On April 16, 2022, Colorado paid sick leave program was extended for additional 90 days, requiring employers to provide up to 80 hours of public health emergency leave for full-time employees. For part-time employees who regularly work less than 40 hours a week, employers are required to provide PTO for the greater of the number of hours the employee is scheduled to work for a 14-day period or the average time the employee works in a 14-day period.

Colorado paid sick leave program was just extended again and took effect July 15, 2022, and is to expire on October 13, 2022. As a result, the Colorado Healthy Families and Workplaces Act’s (HFWA) requirement to supplement paid sick leave related to a public health emergency will continue to be effective until at least August 13, 2022.

Employees are not required to submit documentation in order to make use of the Colorado public health emergency leave. Employees who have previously used the Colorado public health emergency leave are not permitted to take additional time off through the program and must rely on accrued leave for PTO.

Colorado employers have been required to provide public health emergency leave for employers since January 1, 2021.

How:

  • Revise your current sick leave policies and procedures to comply with the new extension.
  • Ensure your HR team and Managers are still complying with the HFWA requirements

Additional Resources:

Paid Sick Leave under the Colorado Healthy Families and Workplaces Act (HFWA)

INFO #6: Summary: Paid Leave under Colorado’s Healthy Families & Workplaces Act (“HFWA”)

Colorado Department of Public Health & Environment

March 1: Colorado Increases Penalties for Restrictive Covenants

Who: Colorado employers

When: March 1, 2022

What: Colorado SB 21-271 criminalizes the violation of C.R.S. Section 8-2-113, a statute that limits restrictive covenants in employment agreements. Effective March 1, 2022, violations of Section 8-2-113 are a class 2 misdemeanor, punishable by up to 120 days’ imprisonment, up to a $750 fine, or both.

All restrictive covenants, including non-competition and non-solicitation covenants, that limit a person’s right to receive compensation for labor are unlawful unless they fall under certain exceptions:

  • Contracts for the purchase or sale of a business or its assets;
  • Contracts to protect trade secrets;
  • Contracts with management or executive personnel (and their professional staff); or
  • Contract provisions to recover expenses related to the education and training of or an employee that worked for an employer for two years or less.

There are two other provisions of the statute that employers should be aware of. It prohibits the use of force, threats, or other means of intimidation to prevent a person from engaging in any lawful work at any place of their choice. It also prohibits the knowing implementation of an unlawful restrictive covenant. Any employer that attempts to enforce an unenforceable restrictive covenant may be found guilty of a criminal misdemeanor.

How:

  • Review your restrictive covenants, non-competition agreements, and non-solicitation agreements to ensure compliance with the law.

Additional Resources:

SB 21-271

Small Colorado Employers Must Now Provide Paid Sick Leave

Who: Colorado employers

When: Effective January 1, 2022

What: Colorado Senate Bill 20-205—known as the Healthy Families and Workplaces Act—was signed in July 2020. It called for all employers to provide paid sick leave for reasons related to the COVID-19 pandemic. The law states that all employers, regardless of size, must provide paid sick leave during a declared public health emergency. The number of hours of leave is based on the number of hours the employee works. For full-time employees, it is 80 hours of paid sick leave, and that’s on top of other paid sick leave. For those who work less than full time, employers must provide the greater of the number of hours the employee is scheduled to work in a 14-day period or the average number of hours an employee works in a 14-day period. Employers may provide more than the required minimum number of hours if they so choose.

Employees do not have to provide documentation if they choose to take this leave for self-isolation based on a positive diagnosis, to seek medical treatment, to care for a family member or a child, or not to work due to pre-existing health conditions. Employees are entitled to take public health emergency paid leave until four weeks after the public health emergency has ended.

SB 20-205 also mandated that, as of January 1, 2021, employers with 16 or more employees must provide one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours per year. As of January 1, 2022, the one-hour-per-30-hours-worked rule applies to all employers, including those with 15 or fewer employees.

The law specifies, “An employee begins accruing paid sick leave when the employee’s employment begins, may use paid sick leave as it is accrued, and may carry forward and use in subsequent calendar years up to 48 hours of paid sick leave that is not used in the year in which it is accrued.” Employers are not required to allow the employee to use more than 48 hours of paid sick leave in a year, but they may provide additional hours if they so choose.

There are two ways employees may accrue paid sick leave. The first is to accrue one hour per 30 hours worked, with a cap limit of no less than 48 hours and a carryover limit of up to 48 hours from one year to the next. Secondly, an employer may opt to use the front-load method, awarding a lump sum of 48 hours on the first day of employment, then renewing that amount every calendar year on January 1. With the second method, no carryover of an unused balance from the previous year is required. Unused sick leave does not need to be paid out at the end of employment. The only exception is if it is included within a comprehensive Paid Time Off (PTO) program.

Employers must provide employees written notice of their rights and must post the Colorado Paid Leave & Whistleblower Poster in the workplace.

How:

  • Review your existing policies and procedures to ensure compliance with the Colorado Paid Sick Leave law.
  • Train your HR staff and managers on the requirements of the law.
  • Monitor for the release of the 2022 version of the Colorado  Paid Leave & Whistleblower  Poster and post- in the workplace and give employees written notice of their rights.
  • Retain records of employee hours worked, paid sick leave accrued, and paid sick leave used. Be prepared to provide such records upon request to the Colorado Division of Labor.

Additional Resources:

SB 20-205

Colorado Division of Labor

7 CCR 1103-7

Colorado DOL Issues Final Wage Protection Rules

Who: Colorado employers

When: Effective January 1, 2022

What: The Colorado Department of Labor (DOL) has issued three final wage-protection rules, all effective January 1, 2022:

  • Colorado Overtime and Minimum Pay Standards Order #38 (COMPS 38);
  • 2022 Publication and Yearly Calculation of Adjusted Labor Compensation Order (2022 PAY CALC Order); and
  • Updated Wage Protection Rules.

The PAY CALC Order carves minimum wage amounts and exempt salary thresholds out of COMPS and presents them in tabular form. This will alleviate the need to revise COMPS on an annual basis solely to update these numbers. The PAY CALC order also provides for annual adjustments in the future. The minimum wage for 2022 is $12.56 per hour or $9.54 per hour for tipped workers who receive enough in tips for their total pay to be at least minimum wage.

COMPS 38 gives employers a new category of exempt employee: highly compensated employees. There are three criteria applicable to this category:

  1. Employee is paid at least 2.25 times the rounded annual salary for the “executive, administrative, or professional” salary limit in the PAY CALC Order (for 2022, the exempt threshold is an annual salary of $101,250);
  2. Employee customarily and regularly performs any one of the exempt duties of an executive, administrative, or professional employee; and
  3. Employee’s primary duty is office or nonmanual work.

For employees that do different work at different rates of pay, COMPS 38 specifies two methods for figuring the regular rate of hourly pay, which is then used in the calculation of overtime pay:

  • Add all wages earned for all jobs and divide by the total number of hours worked in all jobs, which results in a weighted average rate; or
  • Use the regular rate of pay for the work being performed during the overtime hours.

The first method automatically applies. Employers must have a written agreement with the employee to use the second method.

COMPS 38 also includes the following provisions:

  • The subminimum wage for workers with disabilities is eliminated.
  • Agricultural range workers are exempt from minimum wage requirements if they are paid the PAY CALC weekly minimum salary ($515 in 2022).
  • If an employer does not permit an employee to take a required rest period (including an incomplete rest period), the employer must pay the employee a rest period penalty equivalent to the regular rate of pay for the number of minutes the rest period should have been.

Employers must post a COMPS 38 notice or provide it to employees if posting is impractical.

The revised Wage Protection Rules have defined “vacation pay” as “pay for leave, regardless of its label, that is usable at the employee’s discretion.” Therefore, in accordance with Wage Protection Rule 2.17, it is illegal to forfeit an employee’s accrued paid time off (PTO) upon separation.

The revised Wage Protection Rules also define how to pay for Healthy Families and Workplaces Act (HFWA) should be calculated:

  • Employers do not need to include bonuses;
  • Use the shorter of the length of the employee’s employment or the 30 calendar days prior to taking the leave; and
  • For employees with variable hourly rates, add all wages earned during the period and divide by all hours worked in the period.

Under the new rules, employers must provide maintain detailed records of the type of leave each employee has available and how much the employee is used. Employers must provide this information to an employee upon request.

How:

  • Update your policies and procedures to ensure compliance with the new laws.
  • By the end of January, post the COMPS Order Poster in the workplace or provide employees a copy if posting is impractical.

Additional Resources:

Colorado Overtime and Minimum Pay Standards Order #38

Colorado Overtime and Minimum Pay Standards Order (“COMPS Order”) Posters

Colorado Wage Protection Rules, 7 CCR 1103-7

Colorado Department of Labor Proposed/Adopted Rules

2022 Publication And Yearly Calculation of Adjusted Labor Compensation (2022 PAY CALC) Order

Colorado Moves to Endemic Phase

Who: Colorado residents and businesses

When: Effective Immediately

What: On February 25, 2022, Governor Jared Polis announced a plan to shift Colorado’s approach to COVID-19 from a pandemic to an endemic phase, formalizing policies and initiatives to live with the virus as immunity to it increases. The plan is called, “Colorado’s Next Chapter: Our Roadmap to Moving Forward.”

Three main factors were involved in the decision to move Colorado to this phase: vaccine availability to reduce the risk of death from COVID-19, effective therapies to treat COVID-19, and an increased level of immunity because of prior infection or vaccination.

The plan includes making changes in multiple phases that include handling the next variant and addressing a shortage in health care workers. There are four phases outlined in the plan:

  • Preparedness planning for the health care system. This phase means to establish hospital readiness standards, preparedness planning for a surge in cases, and normalizing patient care in traditional health care settings.
  • Public health readiness and surge capacity. Ensuring that public health and emergency management resources are prepared and can respond to the changing need for disease control and emergencies.
  • Stabilizing and expanding the health care workforce. Investing in the current workforce as well as maintaining and building a sustainable future workforce.
  • Working with the federal government to respond to a national endemic, pandemic readiness, and necessary reform. This phase involves working towards a national plan for pandemic readiness and response, investing in public health, a national surveillance system, and flexible, uncategorized funding to support the public health workforce.

During the announcement, Governor Polis went on to say that fully vaccinated residents should get back to their normal life and that vaccinated, immunocompromised Coloradans should take steps to keep themselves protected. He encouraged all unvaccinated residents to get vaccinated. Everyone is encouraged to respect any settings that require a mask.

Next Steps

  • Continue to monitor for ongoing changes that will impact employers and businesses.
  • Determine how your business will respond to any changes in mask mandates for employees and visitors.

Additional Resources

Colorado COVID-19

Colorado Department of Public Health and Environment

Colorado Public Health & Executive Orders Resource

Colorado’s Next Chapter Our Roadmap to Moving Forward

Montana

Montana Protects Employees’ Off-Duty Use of Marijuana

Who: Montana employers

When: Effective January 1, 2022

What: On May 18, 2021, Montana Governor Greg Gianforte signed into law House Bill 701, which protects employees who use marijuana while off duty. The law goes into effect on January 1, 2022.

Employers may not refuse to hire or promote or otherwise take adverse employment action against an employee because that employee uses marijuana while off duty. Employers may implement drug-free workplace policies and to take adverse employment action against an employee for using marijuana while on duty or being under the influence of marijuana while on duty.

The law carves out several exceptions where employers can take action based on an employee’s off-duty use of marijuana:

  • Marijuana use affects the safety of other employees or the employee’s ability to perform their job-related duties;
  • Marijuana use conflicts with a bona fide occupational qualification that is reasonably related to the employee’s employment;
  • The employer is authorized to limit use of certain products as part of the service contract;
  • The employer is a nonprofit organization that discourages the use of marijuana by the general public as one of its primary purposes or objectives; or
  • The employer believes its actions are permissible under an established substance abuse or alcohol program or policy, professional contract, or collective bargaining agreement.

How:

  • Review and update your policies regarding drug testing and use of marijuana to ensure compliance with the law.

Additional Resources:

HB 701

Nevada

Effective Immediately: Nevada Ends Face Mask Mandate

Who: Nevada employers and employees

When: Effective immediately

What: On February 10, 2022, Nevada Governor Steve Sisolack released the Emergency Directive 052 Guidance, which announces a formal end to the indoor face covering mandate for public areas, including schools and prisons. Face coverings are still required to be worn by those attending Nevada hospitals and nursing homes, and while taking public transportation.

The directive lifts the state-wide mask mandate, but it does not prevent individual counties, cities, school districts, and businesses from implementing their own masking policies. Employers are forbidden from creating policies that explicitly prevent the use of masks by their employees.

Per the guidance, Nevada county school districts, charter schools, and private schools are allowed to adopt independent face covering policy as long as those policies do not conflict with requirements from county governments or local health authorities. The Nevada System of Higher Education has announced that face coverings are not mandatory for those attending Nevada’s higher education institutions.

How:

  • Review your current policies and procedures and update them to comply with the guidance.
  • Educate and inform your employees about state mandates and safety protocols.

Additional Resources:

Emergency Directive 052 Guidance

Nevada Health Response

Governor Directives and Declarations

New Mexico

Effective July 1: New Mexico Enacts Paid Sick Leave

Who: New Mexico private employers

When: Effective July 1, 2022

What: New Mexico Governor Michelle Lujan Grisham signed HB 20, the Healthy Workplaces Act, into law on April 7, 2021. Effective July 1, 2022, private employers with one or more employees working in the state must provide all employees with paid sick leave.

Employees earn at least one hour of paid sick leave for every 30 hours worked, with a maximum of 64 hours of paid sick leave per year (any twelve-month period the employer chooses). Employers have the option of front loading 64 hours on January 1 every year. Employees can roll over unused leave up to the 64-hour maximum.

Employees can take paid sick leave:

  • To attend to their own or a family member’s health needs, including preventive care or a physical or mental health illness, injury, or condition;
  • To attend a child’s health- or disability-related school or child care meeting; and
  • When an employee’s or employee’s family member is a victim of domestic abuse, sexual assault, or stalking.

A family member is defined as:

  • An employee’s spouse or domestic partner
  • Children related to the employee or the employee’s spouse or domestic partner, including biological, adopted, or foster children, stepchildren or legal wards, and children to whom the employee stands in loco parentis
  • Parents, including biological, foster, step, or adoptive, or a legal guardian or a person who stood in loco parentis when the employee was a minor child
  • Grandparents
  • Grandchildren
  • Siblings, whether biological, foster, step, or adopted
  • An individual whose close association with the employee or the employee’s spouse or domestic partner is the equivalent of a family relationship

Employees must provide an oral or written request in advance if the event is foreseeable, or as soon as is practical. If possible, the employee should notify the employer of the expected duration of the leave. Employees may take leave in increments of an hour, or smaller increments if allowed by the payroll system. Employers may not condition leave upon the employee searching for or finding their own replacement. They also may not require employees to take other paid leave first.

Employers must provide new hires electronic notification of their paid sick leave rights and responsibilities. Employers must also post the required poster in the workplace. The Labor Relations Division (LRD) of the Workforce Solutions Department have provided the notices and posters.

Employers can request reasonable documentation of a covered purpose after two days’ absence but cannot delay the leave until such documentation is received. Employers must keep records documenting hours worked, earned sick leave accrued, and leave taken for four years.

Local laws do not preempt the state’s Healthy Workplaces Act, but other laws or employer policies may provide for more generous accrual, use, or carryover of earned sick leave. The Act does not preempt or override the terms of any collective bargaining agreement. Employees may not contract out of or agree to waive their rights under the Act.

The Act includes a prohibition on retaliation. Aggrieved employees may file a complaint with the New Mexico Department of Workforce Solutions, Labor Relations Division or file a civil action within three years from the date the alleged violation occurred. Employers who violate the Act are liable for damages and/or penalties pursuant to the Act.

How:

  • Post the required “Paid Sick Leave Notice of Employee Rights,” and provide notification to new hires.
  • Update your paid sick leave policies and procedures to comply with the law.

 

Additional Resources:

HB 20

New Mexico Paid Sick Leave Notice of Employee Rights

New Mexico Paid Sick Leave Poster English

New Mexico Paid Sick Leave Poster Spanish

New Mexico Paid Sick Leave Website (FAQs, Posters, Guide, & Webinar)

A Guide to New Mexico’s Paid Sick Leave Law (April 2022)

Business Policy Compliance Checklist for Healthy Workplaces Act

Utah

Effective July 1, 2023: Utah Enacts Workplace Violence Protective Orders

Who: Utah employers

When: Effective July 1, 2023

Utah Governor Spencer Cox signed HB 324 into law on March 14, 2023, which will become effective July 1, 2023. The law amends Utah’s protective order statute and allows employers to petition for and obtain a workplace violence protective order against someone who has engaged in or threatened potential workplace violence. OSHA requires employers to provide a safe workplace free from recognized hazards that cause or are likely to cause death or serious physical harm, and the protective order is another avenue for promoting workplace safety.

The amended law defines workplace violence as “knowingly causing or threatening to cause bodily injury to, or significant damage to the property of” an employer or employee while performing their duties as an employee. To obtain the order, the employer must prove that underlying events cause “a reasonable person to feel terrorized, frightened, intimidated, or harassed.” If the employer knows a specific person is a target, they have to make a good-faith effort to notify that worker that they are seeking a protective order.

A court can grant the protective order ex parte but must hold a hearing within 21 days (unless the order falls under certain exceptions). Protective orders issued after a regular notice and hearing can be in effect for as long as it takes to protect the employee but cannot exceed 18 months (again, there are certain exceptions). The court may enjoin the perpetrator from committing workplace violence and/or threatening the employer or the employee while working and/or order them to stay away from the specific workplace or property they threatened. Violating a protective order is a Class A misdemeanor.

The law protects employers against civil liability for seeking a protective order if they act in good faith and from failure to seek a protective order.

How:

  • Maintain open lines of communication with employees about their and your concerns and fears about workplace violence.
  • Seek the help of legal counsel to assess threats when they occur, after dealing with imminent danger.

Additional Resources:

HB 324

Effective Immediately: Utah COVID 19 Vaccination and Testing Requirements

Who: Utah employers and employees

When: Effective immediately

What: On November 16th, 2021, Utah Governor Spencer Cox signed SB 2004, requiring that employers with COVID-19 testing or vaccine requirements to allow employees to provide exemptions.

Per this bill, exemptions for testing and vaccination mandates include religious objections, medical reasons, and sincerely held personal beliefs. SB 2004 does not define what constitutes a “sincerely held personal belief,” thereby expanding protections for employees who refuse testing or vaccination.

Termination, demotion, refusal to hire, and reduction of an employee’s wages based on refusing testing and vaccination are all considered adverse reactions by employers as defined by this law and are therefore prohibited.

The bill also prohibits employers from keeping copies of proof of vaccination from their employers unless otherwise required by law. As per the provisions of the bill, employers are also required to pay for mandated COVID testing for all employees.

Employers with less than 15 employees are exempt from the provisions of this bill.

How:

  • Review your current policies and procedures and update them to comply with the new bill.
  • Educate and inform your employees about state mandates and safety protocols.
  • Familiarize yourself with federal vaccine mandates and OSHA standards for potential conflicts with this law.

Additional Resources:

SB 2004

Utah COVID-19 Resources

Back To Top Services: Compliance Services Services: Workplace Health and Safety Services Services: Environmental Risk Management Services About: Leadership Software: Online Training About: Who We Are Resources: Library Resources: Events and Webinars Resources: Blog YouTube Twitter LinkedIn