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December 11, 2020

May Employers Mandate COVID-19 Vaccines?

Steven Gutierrez

Given pending anticipated FDA approval of Pfizer’s COVID-19 vaccine, and encouraging vaccine results from Moderna and AstraZeneca, many employers are wondering whether they may legally mandate vaccinations for their employees. The answer is likely yes, subject to important qualifications. Mandatory vaccines have been commonplace in the healthcare industry for years, and the EEOC has issued past guidance suggesting that employers may mandate vaccines assuming they provide exemptions for employees who cannot take the vaccines for medical or religious reasons. OSHA has issued similar guidance.

While employers may likely mandate vaccinations for their employees, doing so raises a host of legal and practical considerations that employers must consider before any such programs are implemented. These include:

The need to accommodate employees who, because of a medical condition, cannot take the vaccine;
The need to accommodate employees who, because of a sincerely held religious belief, cannot take the vaccine;
Potential liability concerns under workers’ compensation and other laws if employees take the vaccine and develop an adverse reaction;
Potential labor law and related protections for employees who may oppose taking a vaccine based on perceptions that it is unsafe; and
Practical concerns like developing—and evenly enforcing—policies that discipline employees who do not take vaccines.

September 24, 2020

Colorado Court of Appeals: Terms of Employer’s Vacation Policy Control Whether Accrued, Unused Vacation Time Must Be Paid Out at Separation

By Steven Gutierrez and Jeremy Merkelson, Holland & Hart LLP

Steve Gutierrez

The Colorado Court of Appeals issued a very favorable decision to employers today in a case litigated by Steve Gutierrez and Brad Williams of Holland & Hart, LLP. The case addressed an unsettled question under the Colorado Wage Claim Act (“CWCA”)—namely, whether accrued, unused vacation time must be paid out at separation of employment where an employer’s vacation policy states that it will not be. The Court of Appeals held that such time need not be paid out at separation, echoing a similar decision by the Court of Appeals in a similar case last year. The decision issued today—Blount Inc. v. Colorado Department of Labor and Employment, Division of Labor Standards and Statistics—adds fodder to a judicial debate over payout of vacation time that is likely to be resolved by the Colorado Supreme Court in 2021.

The CWCA requires that any unpaid wages and compensation must be paid to employees within specific time periods after their separation of employment. Amongst the wages and compensation that must be paid out is “vacation pay earned and determinable in accordance with the terms of any agreement between the employer and employee.” Colorado law has long been unsettled regarding whether this provision requires payout of any vacation time after it is accrued (e.g., on the theory that the vacation time is then “earned” and cannot lawfully be denied based on a separate section of the CWCA) or whether the terms of an employer’s specific vacation policy determine whether or not vacation time must be paid out at separation of employment (and if so, under what circumstances). The Colorado Department of Labor and Employment, Division of Labor Standards and Statistics (the “Division”), has long taken the position that vacation time once “earned” must always be paid out at separation, and that vacation policies providing otherwise are illegal. However, the Division has also issued inconsistent guidance and administrative decisions on wage claims that call this position into question—including inconsistent guidance on whether “use-it-or-lose-it” vacation policies are legal under its interpretation of the CWCA. Read more >>

September 23, 2020

New Department of Labor Proposed Rule Makes It Easier to Classify Workers as Independent Contractors under the Fair Labor Standards Act

By Devra Hake and Laurie Rogers, Holland & Hart LLP

Laurie Rogers

On Tuesday, September 22, the United States Department of Labor’s Wage and Hour Division announced a proposed rule that clarifies whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The proposed rule adds a new Part 795 to the Code of Federal Regulations. Employees are subject to the FLSA’s minimum wage and overtime protections, whereas independent contractors are not. In the past, courts across the nation have implemented varying multifactor tests to determine whether workers are employees or independent contractors. These tests can be unwieldy and make it challenging for companies to predict outcomes. The Department of Labor’s proposed rule clarifies that the department will use the “economic reality test,” and it identifies two core factors and three guideposts that make up the test. The economic reality test is more business-friendly and makes it easier for employers to classify workers as independent contractors.

The Economic Reality Test

The “economic reality test” is a test to determine whether a worker is economically dependent on a company for work or if the worker is in business for him or herself. If the worker is economically dependent, the worker is an employee. If the worker is in business for him or herself, the worker is an independent contractor. The proposed rule identifies two “core factors” that should be considered when deciding whether a worker is economically dependent:

The nature and degree of the worker’s control over the work. To the extent the worker exercises substantial control over the performance of the work, including setting work hours and selecting work projects, this factor weighs in favor of the worker being an independent contractor. To the extent the putative employer exercises substantial control over the performance of the work, including controlling work hours, workload, and requiring exclusivity, this factor weighs toward the worker being an employee.
The worker’s opportunity for profit or loss based on initiative and/or investment. To the extent a worker has an opportunity to earn more or less profit based on the worker’s own investment in the business or initiative (for example, business acumen or skill), the factor weighs toward independent contractor status. To the extent a worker’s profit or loss is based on the worker’s ability to work more efficiently or the putative employer giving the employee more or less hours, this factor favors classification of the worker as an employee.

September 1, 2020

Colorado Legislature Passes Paid Sick Leave, Other Bills Affecting Employers

by Mark Wiletsky, Holland & Hart, LLP

Mark Wiletsky

In an extraordinary legislative session interrupted by the COVID-19 pandemic—which led to a Colorado Supreme Court ruling approving lawmakers’ right to reconvene after initially adjourning in late March 2020, despite a constitutional provision limiting regular sessions to “one hundred and twenty calendar days”—the Colorado General Assembly passed a number of important bills affecting employers. On July 15, 2020, Governor Jared Polis signed the Healthy Families and Workplaces Act (HFWA), which prescribes new paid sick leave obligations going into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many people they employ) on January 1, 2022. The HFWA also mandates that all covered employers in Colorado provide paid sick leave for certain COVID-19-related reasons immediately and through the end of 2020. Read on for more details about the HFWA and other important legislative developments. Read more >>

July 22, 2020

Communicating with Employees About a Positive COVID-19 Case in the Workplace

By Brit Merrill, Holland & Hart LLP

Brit Merrill

As the number of COVID-19 cases in the United States continues to rise, one question facing employers is when and what information to communicate to employees about a confirmed case of COVID-19 in the workplace.

When should we tell employees if someone has a confirmed case?

Start communicating as soon as you learn there is a confirmed case. Start with those who were in close contact with the affected employee, defined by the CDC as individuals who were within 6-feet of someone who has COVID-19 for at least 15 minutes during the past 14 days. Read more >>

July 14, 2020

Governor Polis Signs New Paid Sick Leave Law for All Colorado Employees

By Steve Gutierrez, Holland & Hart LLP

Steven Gutierrez

On July 14, 2020, Colorado Governor Jared Polis signed into law the Healthy Family and Workplaces Act passed by the Colorado General Assembly during its recently concluded legislative session in June 2020. The new law mandates that nearly all employees working for public and private employers in Colorado must begin accruing at least one hour of paid sick leave for every 30 hours worked, up to 48 hours total, which balance shall carryover year-to-year subject to the limit. This requirement goes into effect for covered employers with 16 or more employees on January 1, 2021, and for all other covered employers (regardless of how many employees they employ) on January 1, 2022.

The law permits use of paid sick leave hours, as soon as they accrue, for numerous reasons ranging from an employee’s own illnesses, to an employee’s need to care for family members, to leave associated with certain domestic abuse or sexual assault issues, to ordered closures of an employee’s place of business, or of a school or childcare facility, if the employee needs to care for a child. Read more >>

July 10, 2020

Traditional ‘Use-It-Or-Lose-It’ Vacation Policies Barred In Colorado—At Least For Now

by Laurie Rogers, Holland & Hart LLP

Laurie Rogers

Under a recent regulation interpreting the Colorado Wage Claim Act (CWCA), Colorado employers are now barred from having policies that permit accrued vacation time to be forfeited if not used within a particular time frame. Instead, under the new regulation, they must compensate employees for all accrued but unused vacation at the time of separation and are otherwise prohibited from having policies requiring the forfeiture of accrued but unused vacation time.

CWCA’s ‘use-it-or-lose-it’ conundrum

The legality of use-it-or-lose-it vacation policies under the CWCA has long been a subject of debate. Section 8-4- 101(14) of the Act defines “wages” and “compensation”— which must be paid out at separation of employment— to include “vacation pay earned in accordance with the terms of any agreement.” The section further provides that if “an employer provides paid vacation for an employee, the employer shall pay upon separation from employment all vacation pay earned and determinable in accordance with the terms of any agreement between the employer and the employee.” Read more >>

May 11, 2020

Time to Review Unlimited PTO Policies

By Tyson Horrocks, Holland & Hart LLP

Tyson Horrocks

Like many businesses, you may have decided to give your employees unlimited PTO – or are considering doing so. The flexibility that unlimited PTO affords helps you attract and retain talent. You also avoid the administrative headaches associated with tracking PTO. And if you terminate the employee, you don’t have to pay out any accrued vacation time. Right? Not so fast.

A recent California Court of Appeal case reminds employers that loosely drafted PTO policies may leave them on the hook for unused vacation days. In McPherson v. EF Intercultural Found., Inc., No. B290869, 2020 WL 1543339, at *1 (Cal. Ct. App. Apr. 1, 2020), the employer purported to have an unlimited PTO policy for certain exempt employees, allowing them to come and go as they pleased so long as they fulfilled their job responsibilities. But the employer did not put this policy in writing, nor did they explain to the employees that paid time off was not a part of their compensation. In the absence of a well-defined policy, the Court found that the employer had an “implied cap” of vacation days based on the customary amount of vacation the employees took. Therefore, the Court held that when the company terminated its employees, it had to pay out the value of the unused portion of the “implied cap.” Read more >>

April 2, 2020

10th Circuit Upholds Hospital’s Rejection of Applicant Under ADA

Mark Wiletsky

by Mark Wiletsky, Holland & Hart LLP

The rules surrounding medical examinations under the Americans with Disabilities Act (ADA) can be tricky. The U.S. 10th Circuit Court of Appeals (whose rulings apply to all Colorado, New Mexico, Utah, and Wyoming employers) recently analyzed the rules in a case involving an employer’s decision to rescind a job offer based on a postoffer, preemployment medical examination. The lessons learned are helpful for all employers that use or consider medical examinations for applicants or employees.

Facts

Elena Sumler applied for a job as a sonographer with the University of Colorado Hospital Authority. Sonographers use their technical skills to obtain and analyze ultrasound images.

The hospital offered Sumler the position, contingent on a medical examination. As part of the medical exam process, she disclosed that she suffers from fibromyalgia and was taking medications, including two narcotic pain medications. She asserted, however, that she wasn’t disabled and had no restrictions preventing her from performing the essential job functions. Read more >>

January 27, 2020

CO Department of Labor and Employment Adopts New Wage and Hour Rules

Read our article about the most recent updates to the COMPS order.

By Brad Williams

Brad Williams

What’s new?

On Wednesday, January 22, 2020, the Colorado Department of Labor and Employment (“CDLE”) adopted the Colorado Overtime and Minimum Pay Standards Order (“COMPS Order”) #36, which replaces Colorado Minimum Wage Order #35. The adopted rules will go into effect on March 16, 2020.

The two most significant changes between Minimum Wage Order #35 and the new COMPS Order that will impact Colorado employers are:

The new COMPS Order applies to all Colorado employers, unless specifically exempted; and
The new order raises the minimum salary threshold required for employees to qualify for exemptions from overtime protections under Colorado law.

The new COMPS Order also makes numerous additional—albeit less significant—changes and clarifications to Colorado wage and hour rules. These include changes and clarifications relating to pre- and post-work time, tips, rest periods, and other issues. Read more >>