CDLE reminds Colorado employers that state-mandated paid emergency sick leave is still required so long as federal COVID-19 emergency remains in effect.

In its recent email newsletter, dated 7/23/2021, the CDLE reminded Colorado employers that state-mandated emergency paid sick leave is required, so long as the federal COVID-19 emergency is in effect (and for so long as any subsequent state or local pandemic emergency is in effect).

Under the Healthy Families and Workplaces Act (HFWA), Coloradans can take up to 80 hours of paid leave in 2021 for any COVID-related needs. This includes not only having COVID-19, but also going to get a COVID-19 test or vaccine, recovering from any vaccine side effects, following a mandatory quarantine, or caring for a family member with any of those needs.

Colorado’s 80-hour COVID-related leave continues as long as a COVID-related emergency remains “declared by a federal, state, or local public health agency” (C.R.S. 8-13.3-402(9)), and the federal COVID-19 emergency is ongoing. The latest declaration extends through October 18, 2021.

HFWA continues the right to COVID-related leave “until four weeks after” all applicable public health emergencies end or are suspended. That means the earliest possible end date of Coloradans’ HFWA right to 80-hour COVID-related leave is November 15, 2021. However, the Biden administration has publicly stated that the federal emergency declaration will likely extend through year’s end.

For more information on paid sick leave, please see the CDLE Division of Labor Standards and Statistics’ fact sheets, INFOs #6B and 6C. You may also call the Division of Labor Standards and Statistics at 303-318-8440.

Think you’re avoiding Colorado’s new posting-notice requirements by adding a disclaimer that Coloradoans aren’t eligible? Think again, CDLE warns it’s going to start cracking down.

In its most recent email newsletter, dated 7/23/2021, the CDLE warned it is going to start cracking down on employers who are trying to avoid Colorado’s new equal-pay posting and notice requirements by declaring Coloradoans ineligible for the position. Such a disclaimer does not evade the new law’s reach.

Equal Pay Transparency – Duty to Disclose Pay in Job Postings Includes All Remote Jobs

Colorado’s Equal Pay for Equal Work Act aims to improve pay equity by improving pay transparency and therefore, requires pay disclosure in all job postings. Recently, numerous complaints cite employers posting remote jobs that lack pay disclosure and exclude Coloradans. In hopes of heading off formal investigations, the Division of Labor Standards and Statistics is undertaking individual outreach to these employers and the broad employer population to clarify: Remote jobs are covered by the Act’s pay disclosure requirement, regardless of an employer’s intent not to hire Coloradans. 

The Act requires that any employer with any Colorado staff “shall disclose compensation in each posting for each job” — unambiguous language with no exception for remote jobs. The sole relevant exception is a narrow, implied one: Jobs performable only at out-of-state sites (e.g., restaurant waitstaff) may be beyond the reach of Colorado law. But employers with Colorado staff who post remote work performable anywhere are not beyond the reach of Colorado law, and excluding Coloradans is not a description of where remote work is performable, it is a preference among applicants.

Labor law requirements are mandatory — not optional based on employer preference  — so excluding Coloradans does not eliminate pay disclosure duties. The Division’s outreach also aims to stress that pay disclosure can be implemented flexibly, often with little change to existing practices. For example, compliant job postings do not need any special format, can include very brief compensation information, and can list a flexible pay range. Additional compliance guidance is available at, which also details contact information to ask the Division individualized questions.

For more information, you can also view the Division’s webinar and related Q&As on this topic: Q&A from 7.2.2021 and Q&A from 7.13.2021.

Vaccine lawsuits rising

Missed my recent webinar on vaccines in the workplace? Email me or send me a message through this website if interested in the complimentary on-demand presentation. In the meantime, check out this article on Law 360 (no subscription required). Interesting topics include a look at some of these new lawsuits, the need to provide certain accommodations, the importance of considering state laws, and the confusion caused by current vaccines EUA status.

EEOC updates guidance on LGBTQ+ issues, including transgender restroom access

The EEOC issued updated guidance on LGBTQ+ issues. Although there are reports that some contest the validity of its guidance, the guidance seems, at least on initial review, largely consistent with the EEOC’s prior views and with various state laws, including Colorado’s. The guidance follows on the heels of the Supreme Court’s decision in Bostock that LGBTQ+ classes generally already fall within Title VII’s longstanding protections for “sex.” Highlights of the guidance include the principle that transgendered individuals should be allowed to use the restroom of their choice, that transgendered individuals may choose to dress and present in the manner of their choice (employers may not mandate gender-specific clothing contrary to the individual’s expressed gender), that customer preferences cannot excuse discrimination, and that the use of pronouns contrary to an employee’s expressed gender may be evidence of discrimination.

EEOC issues new guidance on religious accommodation obligations

The EEOC issued new guidance on religious accommodation obligations imposed by Title VII. The guidance is not regulatory, it was not issued through the formal rulemaking process, and therefore does not enjoy deference in courts, although it is a statement of the EEOC’s opinion of the law for so long as it is in effect. Topics addressed include prayer breaks, contraceptive coverage, LGBTQ+ protections, expression including not only the wearing of religious garb but the expression of religious faith.

EEOC final rule on conciliation in jeopardy?

Earlier this year, the EEOC issued a final rule on conciliation. Conciliation is like a settlement conference in that it is a process in which the EEOC meets with the employer, and usually involved charging parties, and a settlement is possible; however, it is different in that, at a conciliation, unlike at a settlement conference, the EEOC has determined Probable Cause exists to believe there has been a violation and further the EEOC’s goal is not to reach an amicable resolution but to eradicate and prevent ongoing violations. The EEOC’s conciliation process is often unproductive and frequently triggers litigation, as the EEOC’s good faith effort to resolve the case at the conciliation is a prerequisite to its later ability to initiate a lawsuit.  In an effort to clarify its conciliation process and to make it more likely to produce a settlement, the EEOC’s final rule requires the EEOC to, among other things, inform the employer of the facts underlying its Probable Cause determination, in more detail than had previously been required, including to describe in more detail any injured parties for whom relief is sought. The EEOC acknowledges there may be an exception if the individual has requested anonymity. The EEOC will also provide a recitation of the legal basis for its claims and a calculation of any remedies sought. The company will be allowed at least 14 days to consider and respond to the EEOC’s initial proposal.

The EEOC’s final rule has already proven controversial. Although the rule was welcomed by employers, including by SHRM, the Senate has voted to rescind it.