Employment laws in the making

Emily Parkin
Dean Harris

In addition to regulatory changes already in place for 2022, state legislators have introduced measures that will affect Colorado employers if they become law.

Here’s a look at just some of those bills: 

House Bill 22-1216 — restrictive employment agreements. As I discussed in my column in January, Colorado ranks among the most restrictive states on the use of noncompete agreements. HB 22-1216 would further restrict the use of employment agreements. The proposed bill places restrictions on a variety of employment agreements in addition to traditional noncompete and nonsolicitation agreements.  

The bill would require employers to give current or new employees 14 days of notice before implementing a restrictive employment agreement. The bill prohibits restrictive employment agreements with low-wage workers except for confidentiality and training repayment agreements. But the disingenuous definition of a low-wage worker is a worker who makes less than the Colorado threshold for a highly compensated worker. Apparently, Colorado has no mid-level earners. The current minimum annual salary for a highly compensated employee in Colorado is $101,250. Finally, HB 22-1216 applies the reasonableness test for noncompetition agreements under Colorado case law to all restrictive employment agreements and limits the duration of these agreements.

HB 22-1152 — prohibition against employer adverse action for marijuana use. Colorado law allows an employer to take disciplinary action against employees for a positive marijuana test or using marijuana off-duty. Because marijuana remains a Schedule 1 controlled substance and is illegal to possess under federal law, Colorado protections for legal off-duty activities don’t apply.

HB 22-1152 would prohibit an employer from taking adverse action against employees for using medical marijuana on the premises of the employer during working hours or retail or medical marijuana off the premises of the employer during nonworking hours. The prohibited actions extend to discrimination in matters of compensation, terms, conditions or privileges of employment or any action that adversely affects an employee.

An employer may restrict retail or medical marijuana if —borrowing the exceptions found in the Colorado legal off-duty activities law — the use of marijuana relates to an employee’s bona fide job requirements or responsibilities or creates an actual or apparent conflict of interest with the employee’s responsibilities to the employer. HB 22-1152 makes no explicit exception for marijuana use that creates a safety concern for the employer.  Arguably, any safety threat would fall under the exceptions for employment responsibilities or conflicts of interest. This could become fertile ground for litigation if this bill passes.

HB 22-1144 and HB 22-1200 — COVID-related issues.  HB 22-1144 would require an employer who imposes COVID-19 vaccination or testing as a condition of employment, or a state agency that imposes a COVID-19 vaccine or testing requirement, to allow a person subject to the requirement to instead provide documentation demonstrating the person has naturally acquired immunity to the disease.

HB 22-1200 would require employers that impose a COVID-19 vaccine requirement to grant an employee an exemption if the employee submits a written request stating compliance with the requirement would endanger the employee’s or household member’s health and well-being or conflict with the employee’s sincerely held religious beliefs. 

The bill requires an employee only to submit a written waiver request to the employer explaining the need for the exemption. A religious belief includes “theistic and nontheistic moral and ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views.” Interestingly, the bill provides no penalties for violations. But if an employer terminates an employee for failing to comply with the employer’s COVID-19 vaccine requirement, the terminated employee remains eligible for unemployment benefits.

The journey for a bill to become law is usually a marathon, not a sprint. It’s too early to handicap the odds of these bills becoming laws. The bills on restrictive employment agreements and marijuana use are sponsored by Democratic legislators, while the bills on COVID-related matters are sponsored by Republican legislators. Democratic legislators hold a significant majority in both houses of the Colorado Legislature. This would seem to give the restrictive employment agreement and marijuana use bills a foot up in the lawmaking process.  

But the path to legislation isn’t always a marathon. One bill didn’t even get off the starting blocks. HB 22-1130 would have recreated the exemption to the sick leave requirements of the Healthy Families and Workplace Act for employers with less than 16 employees. This exception applied only in 2021. The HFWA requires all employers, regardless of size, to offer sick leave to employees. This bill was postponed indefinitely in committee, almost certainly a death blow.

The Employers Council posts regular updates for its members on the status and anticipated effects of proposed legislation. For more information on the history of these and other employment-related bills, all employers can visit https://leg.colorado.gov/bills.

Employment laws in the making

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