To borrow a metaphor from the Triple Crown horse racing season, Colorado legislators have rounded the curve and are headed into the home stretch. The outcome of the latest race has implications for employers.

The 2021 legislative session started late because of the COVID-19 pandemic and is scheduled to adjourn on June 12. There will be a late charge this year.  Because appropriations bills were delayed, several bills are just getting out of the gate. 

The 2020 legislative session was eventful for Colorado employers. But several employment-related bills introduced in 2021 could approach the effects of employment measures enacted last year.  What bills affecting employers have legislators introduced in 2021, and what are the odds of the measures finishing the race? This column will consider a few of those measures.

The front-runners:

House Bill 21-1108 protecting gender identity and gender expression. This measure provides a wide range of protections against discrimination because of gender identity and expression, including in employment and housing.  This bill passed the House and Senate and awaits the governor’s signature. A U.S. Supreme Court decision in 2020 held sexual orientation and gender identity were included in protections because of sex. Gender identity is already included in the Colorado Antidiscrimination Act, so this bill won’t really change things for employers.   

Senate Bill 21-039 eliminating the subminimum wage.  The bill phases out the subminimum wage allowing employers that hold a special certificate from the U.S. Department of Labor to pay less than the minimum wage to employees whose earning capacity is impaired by age, physical or mental disability or injury. This bill passed its third reading unanimously and is in the Appropriations Committee. While the goals are laudable, it’s possible the bill actually could decrease the number of opportunities for affected employees.

Running with the pack:

SB21-176 imposing new requirements on employers and providing new protections for employees against discrimination.  As introduced, this bill would have brought sweeping changes to Colorado discrimination laws and probably would have been the most significant bill for employers in some time. Provisions included:

Including independent contractors and subcontractors in the definition of protected employees.

Allowing parties to file civil actions in court without waiting for the Colorado Civil Rights Division or U.S. Equal Employment Opportunity Commission to investigate the claim so long as the claimant filed a charge of discrimination with the CCRD or served a written demand upon the employer.

Defining hostile work environment harassment to include behavior that “offends, humiliates, distresses or intrudes upon the individual or otherwise interferes with and undermines the individual’s personal sense of well-being or safety.” 

 Limiting medical examinations and inquiries related to disabilities.

Specifying that failure to initiate an investigation or take appropriate remedial action promptly is a discriminatory practice.

A  Judicial Committee hearing at which Employers Council attorney Chad Trulli testified resulted in a flurry of amendments. The committee removed the provision allowing claimants to bypass the CCRD investigation and go straight to court. This will help prevent the filing of lawsuits with little merit only to force settlement. But the committee kept independent contractors in the definition of “employee.” One provision that remains in the bill allows an employer to defend a harassment claim by showing evidence of an anti-harassment program if the employer has not received a complaint of retaliation in the previous six years. Any retaliation complaint, regardless of its merit, can deny an employer a valid defense to harassment claims. There’s no objective standard in the law to determine when behavior intrudes upon another or undermines a person’s sense of well-being. While this bill awaits action by the full Senate, it’s likely the measure will pass in some form.

HB21-1290 authorizing additional funding for just transition. This bill makes general fund transfers of
$8 million to the just transition cash fund and $7 million to a newly created coal transition worker assistance program account to assist workers and communities in transitioning from coal production. Two Western Slope legislators joined the majority leaders of both the House and Senate to jointly sponsor the measure. While the bill sits in committee now, it’s likely to pass the Legislature with bipartisan support.

n SB21-087 concerning agricultural workers’ rights.  This bill provides sweeping protections to agricultural workers, including the right to overtime, meal and break periods; authorizes agricultural employees to organize and join labor unions, engage in protected, concerted activity; engage in collective bargaining; and removes the exemption of agricultural labor from state and local minimum wage laws. As with the subminimum wage bill, the protective goals of this bill are laudable. But as written, the measure likely will make it more expensive and difficult to produce agricutural goods. While it remains to be seen whether or not this bill will pass in its current form, it probably will pass in some form.

At the back of the pack:

HB21-1191 prohibiting discrimination against persons who refuse to receive a COVID-19 vaccine.  The bill prohibits an employer, including a licensed health facility, from taking adverse action against an employee or applicant for employment based on the employee’s or applicant’s COVID-19 immunization status.  Additionally, the bill specifies the COVID-19 vaccine is not mandatory.  As discussed in my last column in April, current law allows employers to mandate vaccination in most cases under the theory COVID-19 presents a direct threat in the workplace. This bill was assigned to the Health & Insurance Committee, but is unlikely to pass even if it makes it out of committee.

Pulled up lame:

HB21-1049 prohibiting discrimination against employees based on labor union participation. This bill with Western Slope sponsorship would have prohibited an employer from requiring union membership or payment of union dues as a condition of employment. This bill was postponed indefinitely in committee and remains unlikely to pass.

Most of these bills are scheduled to be heard in committee during the first half of May. As the race heats up, some bills will drop away and others will surge forward.  

The Employers Council Employment Law Update is set for June 17 and 18 and will review these measures and other legal developments affecting the workplace.
To register or obtain more information, visit the website at www.employerscouncil.org.