Tag Archives: Colorado

Colorado to Join Growing Number of States with Pregnancy Accommodation Obligations

Contributed by Allison Sues, May 26, 2016

The Colorado state legislature recently passed House Bill 16-1438 requiring employers to engage in an interactive process to assess potential reasonable accommodations for pregnant employees and applicants for health conditions related to pregnancy and childbirth.

If Colorado’s governor signs this bill into law, Colorado will join a growing group of states that have passed similar legislation, including Alaska, California, Connecticut, Delaware, Hawaii, Illinois, Minnesota, Nebraska, New Jersey, New York, Rhode Island, Utah, West Virginia, and the District of Columbia. These state laws require employers to accommodate medical conditions and limitations stemming from pregnancy that may not separately qualify as a disability.

Key Points of State Pregnancy Accommodation Laws

pregnant employeeEach of the state laws include an undue hardship exception, meaning that employers do not need to provide the pregnancy accommodations if doing so would impose significant difficulty or expense. Most of the state laws provide that an employer may require that the pregnant employee produce medical documentation, including advice from a health care provider, regarding the requested accommodation. Many of the state laws require accommodation of conditions related to not only pregnancy, but also childbirth recovery and nursing. The statutes provide several examples of reasonable accommodations that employers may need to provide for pregnant employees, including:

  • Frequent or longer bathroom breaks
  • Breaks for increased water or food intake
  • Breaks for periodic rest
  • Obtaining or modifying equipment or seating
  • Assistance with manual labor
  • Temporary transfer to a less strenuous or hazardous position, if available (with return to position after pregnancy)
  • A part-time or modified work schedule
  • Leave – though most laws explicitly provide that an employer cannot force a pregnant employee to accept leave where alternative accommodations exist

Nearly all of the state statutes expressly prohibit retaliating against any employee who requests a reasonable accommodation for pregnancy-related conditions.

Relation to Current Federal Law

These state laws impose broader obligations on accommodating pregnant employees than what is currently required under federal law. Under federal law, employers must treat pregnancy-related disabilities the same as they would any other disability; however, they do not need to accommodate other conditions or needs stemming from a normal, healthy pregnancy if it does not qualify as a disability under the Americans with Disabilities Act (“ADA”), as amended by the Americans with Disabilities Act Amendments Act (“ADAAA”).

Notably, while employers may not need to offer non-disabled pregnant employees with accommodations under the ADA, denying pregnant employees’ requested accommodations may also give rise to liability under Title VII’s disparate treatment provision, which the Pregnancy Discrimination Act amended to prohibit discrimination “on the basis of pregnancy, childbirth, or related medical condition.” 42 U.S.C. § 2000e(k). Denying a certain accommodation to pregnant employees but providing similar accommodations to other categories of employees – such as employees with on-the-job injuries or ADA disabilities – may allow pregnant employees to allege a discrimination claim that they are treated less favorably than other groups of employees.  Because of the varied – and sometimes conflicting – state and federal obligations surrounding accommodating pregnant employees, employers are encouraged to discuss such requests with legal counsel.

Medical Marijuana Update: Colorado Supreme Court Upholds That Employers May Enforce Drug Free Workplace Policies

Contributed by Michael Wong

On June 15, 2015, the Colorado Supreme Court upheld the appellate court’s ruling that employers can lawfully terminate employees for use of medical marijuana outside of work in compliance with a drug free workplace policy in Coats v. Dish Network, 2015 CO 44 (June 15, 2015).

This is an important decision for employers as many of the state laws “legalizing” marijuana for medical and/or recreational use have been recognized as providing protections from criminal laws, but are unclear as to how much, if any, civil or employment protections are provided to employees under those laws and other state laws.

In Coats v. Dish Network, an employee in an administrative position tested positive during a random drug test. The employee advised the employer that he had a state-licensed medical marijuana card and only used marijuana at home outside of work. After reviewing this information the employer terminated the employee for violating its drug free workplace policy.

The employee then sued the employer under Colorado’s Lawful Activities Act, Colo. Rev. Stat. Ann. § 24-34-402.5 (West), which prohibits employers from disciplining or terminating an employee for lawful activities engaged in off the premises of the employer during non-working hours. Colorado’s Lawful Activities Act is similar to many other state laws, including Illinois, California, Minnesota and New York, which were primarily enacted to prohibit employers from having policies that would prohibit employees from engaging in lawful activities, such as tobacco and alcohol use, outside of work.

The Colorado Supreme Court held that the Colorado Lawful Activities Act only protected outside-of-work activities that are lawful under both Colorado law and federal law. As such, any activities that are unlawful under federal law, like the use of marijuana (medically or recreationally), are not protected under Colorado’s Lawful Activities Act.

This is important, as Colorado employers are able to enforce drug free workplace policies without violating Colorado’s Lawful Activities Act. Additionally, it provides employers in other states some indication that their state courts may follow the Colorado Supreme Court’s lead and find that employers may still enforce drug free workplace policies without violating their state laws. It should be noted that the Colorado Supreme Court relied in part on the federal classification of marijuana as a Schedule I drug that has no medically accepted use, a high risk of abuse and a lack of accepted safety for use under medical supervision, and that a change to the federal classification of marijuana could impact this decision.

The takeaway from the Coats v. Dish Network decision for employers is that until there is clear statutory language or case law stating otherwise, employers are able to enforce their drug free workplace policies. That being said, since this is an issue in which case law is still developing and each state has different statutory language and regulations, employers should consult with legal counsel in addressing these types of issues prior to making any discipline or termination decision.

With A New Year Comes New Rules! Here’s Your State Employment Law Update

Contributed by Heather Bailey

California: Effective January 1, 2015, the required paid for rest periods are considered “hours worked” by the employee, and, consequently, are not subject to wage deductions by the employer.  (California also has special requirements for making any deductions from their paychecks that you should be aware of before making any).

Colorado: Minimum wage rose to $8.23 per hour on January 1 

Connecticut: As of the first of the year, CT’s minimum wage went to $9.15 per hour.  Are you aware there is a paid sick leave law in CT?  If not, be sure to contact your employment counsel or the blog author as some changes were made beginning January 1st.

DCAs of December 17, 2014, employers cannot ask applicants certain information about their criminal backgrounds and any rescinding of a conditional offer of employment must be backed up with a legitimate business reason.  Moreover, employers are required to reasonably accommodate pregnant women when their workload is affected by pregnancy, child birth and child-related medical conditions (i.e., breast feeding).

Massachusetts:  Effective January 1, minimum wage increased to $9 per hour.  July 1, 2015, employers with 11 or more employees will be required to offer up to 40 hours of paid sick leave to employees.

MarylandMaryland’s minimum wage rose to $8.00 as of January 1st.

Missouri: Effective January 1, all equal-priority garnishments should now be prioritized by date of receipt.

New Jersey: NJ joined the other states starting March 1, 2015 to “Ban the Box” and prohibits job advertisements from stating only those without a criminal past can apply.

New York Effective December 31st this past year, minimum wage increased for NY to $8.75 per hour.  Effective immediately, employers will not be required to notify their employees in writing by February 1 about pay rates, pay days, etc. and get signed acceptance.  Employers do still need to abide by their obligation to notify employees of the same at time of hire.

Ohio:  Ohio has now given employers the ability to seek out protective orders when dealing with employees’ stalker or menacing issues when the conduct is directed at the employer.

Rhode Island: Your minimum wage increased to $9 an hour beginning this month.

Vermont: Your minimum wage increased to $9.15 an hour beginning this month.

Please keep in mind that the majority of states increased their minimum wages and you should contact your employment labor counsel or the blog author to confirm you are in compliance.

State Employment Law Update

Contributed by Heather Bailey

Federal:   Federal Contractors be on alert! In an attempt to get Congressional support to raise the federal minimum wage for all workers, President Obama announced that he was going to be issuing an Executive Order that will require federal contract employers to pay workers a minimum wage of $10.10 per hour on any new federal contracts.  This could happen as soon as the next week or so.

The NLRB poster rule has gone by the wayside.  The NLRB gave up its fight to require all private employers to post the union-friendly poster by allowing the Supreme Court’s review deadline to pass without appealing two appellate court decisions that declined the NLRB’s implementation for this posting requirement.  Federal Contractors, you may still be required to display the poster depending on the date of your federal contract.

Colorado:   If you aren’t already, you should be paying minimum wage of $8.00 an hour ($4.98 for tipped employees) as of January 1.  Moreover, under Colorado’s new personal information protection law, employers are prohibited from requiring employees or applicants to allow them access to personal social media accounts, though they may still search information that is publicly available online.  Fines come with violating this law, so be precise on how you go about searching.

Delaware:  As of June 1, 2014, minimum wage increases to $7.75 per hour and to $8.25 an hour on June 1, 2015.

Missouri: Missouri looking for support for LGBT discrimination protection: In his recent State of the State address, Gov. Jay Nixon asked the legislature to pass a law adding sexual orientation and gender identity to the protected categories covered by the state’s workplace discrimination laws.  A bill passed the Senate last term, but the House failed to vote on the bill before the session ran out.

New Jersey:  REMINDER! All employers with 50 or more employees should be posting and distributing (with a signed acknowledgment) the new NJ poster re state and federal equal pay laws and discrimination prohibitions.  Get your latest copy here: http://lwd.dol.state.nj.us/labor/forms_pdfs/EmployerPosterPacket/AD-290GenderEquity1-14.pdf.

Got 10 or more employees in Newark, NJ?  If so, you may be required to start offering your employees paid sick time under the new Worker Sick Leave Ordinance (WSLO) that just needs the Mayor’s signature to take effect sometime in late May, early June.  Stay tuned for final implementation!

New Mexico:  In December 2013, this state joined the ranks of same-sex marriages, and, thus, these new marital statuses must be recognized and protected for employment purposes (including applicants).

New York: For those employers with 20 or more employees in New York City, have you drafted your required sick time policy under the New York City Earned Sick Time Act (ESTA) yet?  If not, you’ve got until April 1 to implement.  Seek counsel’s assistance to ensure compliance.

Multi-State Employers: It’s Time for Your State L&E Update!

Contributed by Heather Bailey

ColoradoEmployees must be allowed to take FMLA leave for their domestic partner or civil union partner who has a serious health condition.

Connecticut: Here, homeless applicants and employees are now a protected class from discrimination.  Effective January 1, 2014, minimum wage increases to $8.70 per hour and to $9 on January 1, 2015.

Illinois: Employers can now stop reporting projected monthly wages on the new-hire reports.

Maryland:  Effective October 1, 2013, employers have a new posting requirement for tipped employees stating that employer cannot require tipped employees to reimburse employer for unpaid customer charges.  If an employer does not offer health insurance, employees’ minimum wages are $8.25 per hour.

NevadaNevada has become the next state prohibiting employers from compelling employees to give up their personal social media account log-ins and passwords, effective October 1, 2013.

New Hampshire: Effective August 24, 2013, employers cannot ask applicants and employees regarding certain annulled records, as well as, medical marijuana is now legal but employers may not need to accommodate this (be prepared on how you handle this in the workplace).

New YorkMinimum wage increase to $8 an hour on December 31, 2013, to $8.75 on December 31, 2014 and $9 on December 31, 2015.

Rhode IslandMinimum wage rises to $8 per hour on January 1, 2014, as well as, same-sex marriages and civil unions from other jurisdictions are now recognized.

State laws change every day.  Make sure you are aware of them all for the states in which you have employees!