Colorado Employment Law Update

From the Journal of the Colorado Dental Association Winter 2025,

By Gary Benson, Esq., Partner at Dworkin, Chambers, Williams, York, Benson & Evans, P.C.

As we move into 2025, the employment landscape for Colorado businesses is changing. Employers in Colorado face new laws and amendments to existing laws at what feels like breakneck speed. As a business owner you must be vigilant and on the lookout for laws that impact the rights of your employees and your obligations as an employer.

There are several new employment laws and 2024 amendments to existing laws affecting businesses of all sizes in Colorado, including:

1. Amendments to the Colorado Healthy Families and Workplace (HFWA) Act
2. The Job Application Fairness (JAFA) Act
3. Amendments to the Colorado Equal Pay for Equal Work (EPEWA) Act
4. The Family and Medical Leave Insurance (FAMLI) Act
5. Changes to Colorado’s Noncompete Statute
6. Hair Length and the Creating a Respectful and Open World for Natural Hair (CROWN) Act
7. Colorado Disability Opportunity Office
8. Privacy of Biometric Data within the Colorado Privacy Act

In addition to the above new employment laws and 2024 amendments, the Protecting Opportunities and Workers’ Rights (POWR) Act, effective as of Aug. 7, 2023, made several significant changes to the Colorado Anti-Discrimination Act (CADA).

1. 2024 Amendments to the Healthy Families and Workplaces Act (HFWA)

Prior to the creation of the HFWA, employers were not obligated to provide sick leave for employees. However, the HFWA establishes the minimum standards for employees to accrue paid sick leave. Colorado employees must earn at least one hour of paid sick leave for every 30 hours worked. A full-time (40-hour a week) employee accrues at least 48 hours of paid sick leave per year.

Beginning Aug. 7, 20, employees eligible for leave under HFWA are permitted to use such leave for two new types of absences:

• to grieve the death of a covered “family member” (as defined in CRS 8-13.3-402), to attend a funeral/memorial for a covered family member, or to handle legal or financial matters in the wake of a covered family member’s death, and
• to evacuate from their residence or to care for a covered 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 other unexpected occurrences or events.

Employers in Colorado cannot retaliate against employees who take leave for any protected reason. It is also important to note that employers cannot ask for a “doctor’s note” or confirmation of the need for qualifying HFWA leave until an employee has missed four consecutive shifts.

2. The Job Application Fairness Act (JAFA)

Beginning July 1, 2024, JAFA will prohibit employers from asking age-related questions to an applicant on an initial application, including requesting or requiring that the applicant disclose their age, date of birth, and attendance or graduation dates from school.

However, employers may ask applicants to verify their compliance with age requirements imposed pursuant to a federal law or regulation, a state or local law or regulation based on a bona fide occupational qualification, or a bona fide qualification pertaining to public or occupational safety.

Although JAFA does not establish a private right of action for violations, if the Colorado Department of Labor and Employment (CDLE) determines that an employer has violated the law, the agency will issue an initial order to the employer to comply with JAFA within 15 business days. Subsequent violations will result in a maximum fine of $1,000 to $2,500, depending on the number of previous violations. Importantly, each non-compliant “job posting” (i.e., a “job posting” that requires applicants to disclose unlawful age-related information in their application for the position) will be considered a separate violation, but additional liability will not be imposed based on the number of responses that the employer receives to the posting. JAFA directs the CDLE to promulgate rules on how it will handle complaints, so employers should stay tuned for further guidance.

3. Amendments to the Colorado Equal Pay for Equal Work Act (EPEWA)

Beginning Jan. 1, , Colorado employers have significant new disclosure and notice requirements under the state’s EPEWA, including, but not limited to:

• An obligation to provide notice to employees for each “job opportunity” (rather than a promotional or advancement opportunity).
• In addition to salary and benefit information, an obligation to include in job notifications the date the application window for each job opportunity is anticipated to close.
• New disclosure obligations for positions that follow career progressions.
• An obligation to make reasonable efforts to disclose information regarding selected candidates to employees with whom the candidate will likely work.

The amendments to the EPEWA also extend the statute of limitations from three years to six years.

4. The Family and Medical Leave Insurance (FAMLI) Act

Colorado voters approved the paid FAMLI program in 2020, but paid FAMLI leave did not become available to Colorado employees until Jan. 1, 2024. FAMLI ensures 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, so workers don’t have to choose between earning a paycheck and taking care of their families. Employees must be notified, either by the employer’s conspicuous posting of a notice in the office, or via electronic means if the employee works remotely, of their potential right to apply for FAMLI leave. An employee will apply for FAMLI leave directly with the State of Colorado, and the application and approval process is completed by the CDLE. As the employer, you will be notified if an employee’s application has been received and approved.

FAMLI benefits officially became available on Jan. 1, 2024. Covered Colorado workers may receive up to 12 weeks of leave per year to:

• Bond with a new child, including adopted and fostered children.
• Care for themselves if they have a serious health condition.
• Care for a family member’s serious health condition.
• Make arrangements for a family member’s military deployment.
• Address the immediate safety needs and impact of domestic violence and/or sexual assault.Those who experience pregnancy or childbirth complications may receive an additional four weeks for a total of 16 weeks per year.

Both employers and employees contribute premiums to the program. Premium contributions began in January 2023. Employees who are deemed eligible for FAMLI are entitled to receive 90% of their average weekly wage, up to a maximum of $1,100 per week, if they are approved for FAMLI Leave.

It is important to note that if an employee has worked for an employer for six months or longer, they have job protection upon their return from FAMLI leave.

5. Changes to Colorado’s Noncompete Statute

House Bill 24-1324 amends Colorado’s noncompete law to enhance the Attorney General’s enforcement authority over restrictive employment agreements and to set guidelines and penalties regarding the recovery of employee education and training expenses by employers. In particular, the law prevents workers from seeking damages or injunctive relief for a violation of the noncompete law if the Attorney General successfully recovers damages from the violating employer.

For employers that violate the noncompete law’s restrictions on recovering education and training expenses, the Attorney General may recover three times the amount that the employer sought to recover. The law also subjects an employer’s right to recover education and training expenses to forthcoming regulations issued by the Attorney General. The law took effect on Aug. 7, 2024.

6. Hair Length and the Creating a Respectful and Open World for Natural Hair (CROWN) Act

The CROWN Act of 2020 prohibits racial discrimination in employment practices based on hair texture, hair type, or hairstyles commonly or historically associated with one’s race. House Bill 24-1451 amends the CROWN Act to include prohibitions against racial discrimination based on hair length. The new change took effect on Aug. 7, 2024.

7. Colorado Disability Opportunity Office

House Bill 24-1360 establishes the Colorado Disability Opportunity Office (CDOO) within the CDLE. The CDOO aims to protect civil rights, create opportunities, and ensure adequate services for individuals with disabilities within Colorado. With the formation of the CDOO, Colorado employers can anticipate a greater focus from the CDLE in the coming years on workplace issues concerning fair opportunities for individuals with disabilities and enhanced anti-discrimination initiatives. This law went into effect on July 1, 2024.

8. Privacy of Biometric Data

House Bill 24-1130 amends the Colorado Privacy Act to require Colorado employers and controllers that collect and process biometric data or identifiers to comply with various disclosure, consent and retention requirements beginning  July 1, 2025. Among the law’s requirements, employers that handle biometric data must adopt a written policy detailing data retention schedules, security breach protocols and guidelines for data deletion. Employers must also inform individuals about the collection and purpose of their biometric data while data controllers must obtain consent before collecting any biometric data.

Consumers (including employees) have the right to access their biometric data and any information about the data’s collection, use and sharing. The law also prohibits employers and other businesses from selling, leasing, or trading biometric data or refusing services based on an individual’s refusal to provide biometric data unless it is necessary for the service. Further, the law prohibits the use of biometric data to track an employee’s location or the time spent on a task without consent.

What Colorado Employers Should Do Now

Each of these new laws will likely affect a variety of policies and practices for Colorado employers. To ensure that they are ready to comply with the new legal landscape, employers with a Colorado workforce should do the following:

• Review and revise discrimination, harassment, and other equal employment opportunity policies to comply with the new legislation, including ensuring that if legal standards are part of the policy, the POWR Act’s “unwelcome” standard for harassment is properly included, and identifying marital status as a protected characteristic if all protected characteristics are listed in the policy.
• Update and provide training to all employees regarding discrimination, harassment, and other equal employment opportunity policies, including complaint reporting mechanisms.
• Conduct an audit of discrimination and harassment complaint procedures, including how such complaints are investigated and remediated. Ensure that human resources professionals, supervisors and investigators understand their role in the investigation process.
• Review and revise NDAs to ensure that any such agreements entered into or renewed on or after Aug. 7, are mutually applicable to the employer and employee, and otherwise comply with the new requirements under the POWR Act.
• Ensure that initial application materials do not ask or require an applicant to disclose age-related information, including, in particular, requesting the years of the applicant’s graduation from school.
• Review and revise sick leave policies to permit employees to use such leave for covered bereavement activities and unexpected occurrences.
• Update job posting and notice procedures to ensure compliance with the amendments to the EPEWA disclosure obligations as of Jan. 1, 2024.

If you have any questions regarding any of the above laws and amendments, and your practice’s compliance with the law, please contact your employment counsel who can provide you with guidance as it relates to your situation.

Gary received his B.A. from Beloit College in 1987 and a J.D. Degree from the University of Denver, College of Law, in 1990. Gary advises and counsels numerous businesses on their employment practices and procedures. He has litigated Title VII, ADA, ADEA, and ERISA claims as well as commercial business disputes, including real estate, construction defect, non-competition and trade secret matters.  In addition to litigating in state and federal court for the last 25 years, Gary also drafts employment agreements and negotiates severance packages for highly compensated executives.