The new presidential administration, perhaps more so than in the recent past, presents an embarrassment of riches for constitutional lawyers, including employment practitioners. A bewildering eruption of executive orders, personnel actions, lawsuits and countersuits is already underway.

As a constitutional and employment attorney, I would love to jump in. But I don’t need to jump into the volcano to advise readers on the temperature of the lava. So, I am waiting out these salvos on the federal front to give more concrete advice to readers as matters sort themselves out.

Instead, I will discuss some bills introduced by the Colorado Legislature that may affect employers in the future. This year looks similar to last year. After several years of frenetic legislative changes affecting employers, last year was relatively quiet. So far, this year also proposes modest changes for employers.

Senate Bill 25-083 would broaden protection for doctors, dentists and registered nurses under Colorado laws regulating noncompete agreements. On August 10, 2022, HB 22-1317, “Concerning Restrictive Employment Agreements,” was enacted into law. The new law established sweeping new restrictions for employers using non compete and other restrictive employment agreements. The updated version of C.R.S. 8-2-113 specified that any covenant not to compete in an employment, partnership or corporate agreement could not restrict the right of a physician to practice medicine. But HB 22-1317 only allowed a physician to disclose his or her continued practice of medicine and contact information to any patient with a rare disorder.

SB 25-083 would expand this exception, allowing doctors, dentists and registered nurses leaving a medical practice to provide patients to whom the health-care provider was providing consultation or treatment before the health-care provider’s departure from a medical practice the following information: 1) the health-care provider’s continuing practice of medicine; 2) the health-care provider’s new professional contact information; and 3) the patient’s right to choose a medical provider. The Senate’s Business, Labor and Technology Committee had a hearing on this bill on March 6.

Senate Bill 25-074 would have established an exemption from the Paid Family and Medical Leave Insurance (FAMLI) program for employers whose workforces consist of 51 percent or higher specialized employees. But on Feb. 11, the Senate State, Veterans and Military Affairs Committee voted 3-2 to indefinitely postpone this bill.

A “highly specialized employee” is one whose job description or duties 1) involve responsibilities that are not easily transferable; 2) requires a specific or unique advanced degree that limits the pool of replacements; or 3) require a skill set that is rare or in high demand. The exemption would not apply automatically. Qualifying employers would need to reapply annually to the Division of Family and Medical Leave Insurance for approval.

This bill is sponsored by Republicans in the Senate and the House. Because the bill relaxes Colorado’s tight limitations on restrictive agreements, albeit modestly, this bill faces opposition in Colorado’s Democratic-controlled legislature, and it is unlikely to return in this legislative session.

House Bill 25-1286 would require employers to provide protections for workers who are exposed to “extreme hot and cold temperatures” at the worksite. Protections would include temperature mitigation measures, rest breaks and temperature-related injury and illness prevention plans.

The goal of this bill is laudable, but the bill is complex, and some required measures could create difficulties for employers. For example, the “initial heat trigger” for the protections to apply is set at a heat index of only 80 degrees Fahrenheit, and the “initial cold trigger” is set at 30 degrees Fahrenheit. But other triggers exist, triggered by combinations of wind speed and humidity. And some of the remedial measures contain very specific requirements such as specific drinking-water temperatures, gradual acclimatization of new employees to heat exposure, and varying break requirements.

This bill is sponsored by leadership in both the House and Senate and will draw broad support. The Business and Labor Committee will consider this bill on March 13.

The Employers Council provides its members frequent updates on legislative actions that affect employers and resources for understanding and applying new legal requirements. And Employers Council consulting and enterprise level members may speak directly with our human resources professionals and employment attorneys at any time for advice on complying with proposed and new legislation.