Author Archives: Dana Dobbins

September 25, 2024

Demystifying Qualifications for PWFA

Dana Dobbins

Question: Do employees have to be employed for 12 months or work 1,250 hours to qualify for the Pregnant Workers Fairness Act (PWFA), or do they qualify as soon as they begin employment?

Answer: No, employees do not need to be employed for 12 months or work a minimum threshold of hours before they can qualify for protections and accommodations under the federal Pregnant Workers Fairness Act (PWFA) or the Colorado PWFA. Employees qualify immediately (provided that the employer is a covered entity). In fact, by its terms, the PWFA applies even to job applicants. This is also true for Colorado’s PWFA.¹

Under the PWFA, employers must make reasonable accommodations for the known limitations of an employee or applicant, unless the accommodation would cause an “undue hardship”—i.e., significant difficulty or expense. Read more >>

August 26, 2024

Preventing Double-Dipping: Ensure that Paid Parental Leave Runs Concurrently with FAMLI Leave and FMLA

Dana Dobbins

By Dana Dobbins

In Colorado, beginning on January 1, 2024, eligible employees can take paid leave for a variety of circumstances under Colorado’s Family and Medical Leave Insurance (FAMLI) program. Given that the FAMLI program is still in its infancy, there are several ambiguities and issues that still need to be resolved, and employers are still adjusting their policies.

One of the pitfalls facing employers is that they have not updated employment handbooks or policies to clarify that any paid parental leave otherwise offered under company policy runs concurrently with FAMLI leave (in addition to running concurrently with FMLA leave), not in addition to those leaves. Failing to update those policies may leave the employer in a situation where an employee can take 24 or more weeks of leave, and there is little the employer can do to prevent it without running afoul of the law. For most employers, this extended duration of leave is simply not feasible. Thus, updating relevant handbook or policy provisions is key. Read more >>

August 20, 2024

Responding to Employee Requests for Personnel Records

Dana Dobbins

By Dana Dobbins

Question: What are the guidelines for when employees, current or former, request a copy of their personnel file, and what files are required to be provided upon request?

Answer: When it comes to an employee’s or former employee’s request for their own personnel files, employers must be cognizant of applicable state and local law when responding to such requests. Some states, including Idaho, Montana, New Mexico, Utah, and Wyoming do not have any state or regulatory provisions that apply to private-sector employment (though there may be specific regulations related to public-sector employers). Employers should be mindful of any company policies or procedures governing access to personnel files, which should comply with any applicable laws, and must apply those policies and procedures consistently.

Other states have specific rules governing current and former employee access to the employee’s personnel file. For example, under Colorado law, an employer must allow a current employee to inspect and obtain a copy of his or her personnel file at least annually, upon the employee’s request. However, the employer can require that the review occur at the employer’s office at a time that is convenient for both the current employee and the employer. Read more >>

April 5, 2024

Pay Obligations During Doctor-Recommended Leave of Absence

Dana Dobbins

By Dana Dobbins

Question: We have an employee whose essential functions require the use of their hands. They have requested an accommodation, and their physician has recommended time off until specific medical restrictions can be determined. What is our obligation to pay this employee during this doctor-recommended leave of absence?

Answer: Depending on your policies, you may allow or require the employee to use accrued paid vacation or sick leave towards their absence. Beyond paying appropriate sick leave and perhaps applying paid vacation leave, an employer is not otherwise required to pay an employee’s regular wages while the employee is on an extended medical leave of absence. Read more >>

April 4, 2024

AI in the Workplace: Crafting Policies for Employees’ Use of Generative AI

Dana Dobbins

By Dana Dobbins

Artificial intelligence (AI) is becoming increasingly prevalent in workplaces, providing new opportunities as well as new challenges for employers and employees. While AI has the potential to improve efficiency and productivity, its use also raises important questions around issues like privacy, discrimination, and job displacement. Employers who choose to implement AI should consider including a provision in their employee handbook, or a separate policy, specifically addressing its use. Such a provision or policy can help mitigate risks, provide clarity for employees, and demonstrate an employer’s commitment to using AI ethically and responsibly.

Employers who incorporate AI into the workforce should develop policies governing appropriate use of generative AI, regularly update those policies as laws and technology continue to change, and enforce their policies. Employers should consider the following provisions in their AI use policies:

Specify Which Employees May Use AI and Require Prior Approval

For any number of reasons, employers may be willing to let some teams or groups, but not others, use generative AI technology, especially while the employer is still examining how AI can be incorporated in their company or industry. An AI policy should specify which departments, if any, are permitted to use AI. Read more >>

November 2, 2023

Water Sources and Compliance with the PUMP Act

Dana Dobbins

By Dana Dobbins

Question: To be compliant with the PUMP Act, it states there must be a water source. Must this water source be in the same room as the designated space, or is nearby acceptable? It is difficult to identify a space that can be locked, quiet, and private that is not a bathroom but also has a sink.

Answer: The federal Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was signed into law on December 29, 2022. The PUMP Act requires em-ployers to provide covered employees with “a place, other than a bathroom, that is shield-ed from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” 29 U.S.C. 218d(a)(2). This law does not require that a water source be within the designated lactation space. Read more >>

October 31, 2023

Breastfeeding Accommodations in the Workplace

Dana Dobbins

By Dana Dobbins

The ability to pump breast milk in the workplace is protected by the FLSA. In 2010, the Break Time for Nursing Mother Act was passed as part of the Affordable Care Act (ACA) and amended the FLSA to include break time and space requirements for nursing to pump breast milk at work. The PUMP Act was signed into law on December 29, 2022, further amending the FLSA to extend the reasonable break time requirement and expand lactation space requirements. The PUMP Act also extended available remedies for violations. Employers should be cognizant of the PUMP Act requirements, as well as any further protections imposed by state and local law.

Break Time Requirements

The PUMP Act requires employers to allow covered employees, for one year after the child’s birth, to take reasonable break time each time such employee has need to express the milk. The PUMP Act is silent as to what is considered a reasonable break time or how many breaks are permitted, reinforcing the drafters’ intent that these issues are to be determined on a case-by-case basis depending on the individual needs of the employee. The Department of Labor (DOL) has explained that the frequency and duration of breaks will depend on a variety of factors, including the location of the lactation space, and the steps reasonably necessary to express breast milk, such as pump setup. An employer cannot deny a break for a covered employee who needs to pump. Read more >>