As an employment attorney, I regularly tackle an annual review of my clients’ contracts, employment policies, and employee handbooks. Why does this matter? Well, employment laws and business norms are constantly evolving. Ensuring that your company is in full compliance with state and federal employment laws and regulations helps businesses avoid fines, lawsuits, employee confusion, and conduct issues.
Here are the eight newest key federal and Colorado state laws that every business owner must comply with and address in their employee handbooks:
Requests for Religious Accommodations
The United States Supreme Court recently provided a significant clarification and definitive interpretation of the undue hardship standard concerning religious accommodation claims under Title VII of the Civil Rights Act of 1964. Accordingly, all employers must now be aware that they must treat requests for religious accommodations differently. Employers can no longer point to any small burden to show undue hardship and successfully reject an accommodation.
Instead, when an employer is determining whether or not to grant a religious accommodation, they must prove that doing so would result in “substantially increased costs in relation to the conduct of [an employer’s] particular business.”
Protections for Pregnant and Nursing Mothers
Two new laws that enhance protections for pregnant and nursing parents in the workplace – the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) – are now in effect. All employers are expected to comply or face “meaningful remedies” if found to have violated employees’ rights. Penalties can range from reinstatement to back pay for lost wages or even punitive damages.
Under the PWFA, employers with 15 or more employees are required to provide “reasonable accommodations” to workers for “known limitations related to pregnancy, childbirth, and related medical conditions” unless they would cause an “undue hardship” on the employer’s operations, which is a significant difficulty or expense for the employer. The PWFA also extends protections to pregnant workers similar to those provided under the Americans with Disabilities Act.
The PUMP Act establishes nationwide protections for employees who need to express milk for nursing children at work and applies to nearly all employers covered by the Fair Labor Standards Act, regardless of size or industry, including those with fewer than 50 employees. Even employers who do not have a traditional office space, such as restaurants or retail establishments, must provide a private space for employees to express breast milk that meets the functional requirements outlined in the Act. The only exceptions are for airline crew and pilots, coach, bus, and railway workers.
Employers with fewer than 50 employees may be eligible for an exemption to the lactation space requirement if they demonstrate that providing the space would impose an undue hardship. It’s important to note, though, that the law sets a very high standard for demonstrating undue hardship. Employers must prove that providing the space would be prohibitively expensive or fundamentally alter the nature of the employer’s business.
Non-Disclosure Agreements and Sexual Assault and Harassment Claims
The Speak Out Act prohibits the enforcement of certain contract provisions that would “silence” people who claim to have suffered sexual assault or sexual harassment by making it so that courts cannot enforce nondisclosure and non-disparagement agreements “relating to disputes involving sexual assault and sexual harassment.”
Previous language in the employer’s non-disparagement provisions might ask the employee to “agree that you will not at any time make, publish, or communicate any disparaging remarks concerning the Company or its businesses, subsidiaries, or employees.” However, clauses like these can no longer be used to later prohibit a person from alleging sexual assault or sexual harassment.
Colorado State Laws
Salary Thresholds and the Enforceability of Non-Compete Agreements
In Colorado, an employer’s ability to use or enforce non-compete agreements (including the non-solicitation of customers) is now directly tied to certain employee salary thresholds. Those thresholds increase in 2024 and will continue to increase annually.
For 2024, non-competition agreements will be valid only if they are (1) entered into with a working earning at least $123,750 in 2024, (2) designed to protect trade secrets, and (3) no broader than necessary to protect the employer’s legitimate interest in protecting trade secrets.
Job Application Fairness Act
Starting July 1, 2024, an employer may no longer request or require an individual to include their age, date of birth, and dates of attendance at, or graduation from, educational institutions on initial employment applications. It is important to note these restrictions apply only to initial employment applications.
The Act includes three limited exceptions. An employer may request (but still cannot require) an applicant to verify compliance with age requirements pursuant to or required by (1) a bona fide occupational qualification pertaining to public or occupational safety, (2) federal law or regulations, or (3) state or local laws or regulations based on a bona fide occupational qualification.
Use of Paid Sick Leave Expands
The Colorado Healthy Families and Workplaces Act (HFWA) now requires all Colorado employers to allow employees to use accrued paid sick leave for absences from work for two additional reasons:
- Bereavement or financial or legal needs following the death of a family member
- Inclement weather (i.e., power outages, heat, and water loss) or other unexpected events wherein the employee must
- evacuate their residence, or
- care for a family member whose school or place of care was closed.
Employers must be aware that the HFWA includes anti-retaliation provisions stating employers cannot retaliate against employees for utilizing their paid sick leave benefit. Retaliation includes discipline, discharge, or any other adverse employment action against an employee who takes sick leave.
Sweeping Changes with the POWR Act
When the Protecting Opportunities and Workers’ Rights Act took effect in August 2023, it immediately impacted every Colorado employer in several areas:
- Marital Status is now a protected class under the Colorado Anti-Discrimination Act. Employers cannot refuse to hire, discharge, promote, demote, harass, or discriminate against any individual otherwise qualified because of marital status.
- Employers are legally permitted to refuse to hire, discharge, or promote or demote an individual with a disability if (1) there is no reasonable accommodation that would allow the employee to meet the essential functions of the job and (2) the disability actually disqualifies the employee from the job position.
- The requirement that harassment be “severe or pervasive” has been removed, and harassment is now defined as conduct or communication that is subjectively offensive to the person alleging harassment and objectively offensive to a reasonable person who is a member of the same protected class.
- Nondisclosure agreements entered into or renewed on or after August 7, 2023, that limit the ability of an employee to disclose or discuss any alleged discriminatory or unfair employment practices are void unless several specific provisions are met.
- Employers must keep records of discriminatory or unfair employment practices for at least five years.
State-Administered Paid Family & Medical Leave
On January 1, 2024, the state-administered, mandatory Family and Medical Leave Insurance (FAMLI) program now enables all Colorado employees to take 12 weeks of paid leave from work to take care of their health or address the medical needs of their family members. In addition, employees can claim an additional four weeks of paid leave for childbirth or pregnancy complications.
What Should Employers Do Now to Address These Legal Changes?
With the assistance of an experienced employment law attorney, I advise all employers to immediately:
- Update employee handbooks with information about employee rights under each of these laws and clear company guidelines and policies that demonstrate commitment to compliance.
- Review policies and provide training for managers to ensure they understand and abide by employee’s rights under these laws and the employer’s legal responsibilities.
- Update non-disclosure and non-solicitation agreements.
- Maintain detailed and accurate employee records as required by law and deemed pertinent by your attorney.
Regular consultation with an employment attorney who understands your business and its needs and can advise on necessary annual updates to employee handbooks will go a long way towards ensuring your business remains compliant with all state and federal employment laws, thereby reducing the risk of potential disputes and fostering a transparent and fair work environment.