Recently, Colorado (CO) passed the Protecting Opportunities and Workers’ Rights (POWR) Act, which amends existing employment law and significantly expands protections for employees. Among other changes, the POWR Act redefines the standard for workplace harassment and disability claims, voids certain nondisclosure agreements, and imposes new employer recordkeeping requirements. Separately, CO also recently expanded employees’ right to use paid sick leave for additional qualifying reasons. These changes are discussed in more detail below.

Protecting Opportunities and Workers’ Rights (POWR) Act

Effective August 7, 2023, the POWR Act provides the following protections for employees against discriminatory and unfair employment practices:

  • Workplace Harassment: The POWR Act removes the requirement that conduct be “severe and pervasive” for it to be considered harassment. The Act redefines harassment as any unwelcome physical or verbal conduct or any written, pictorial, or visual communication directed at an individual or group of individuals related to the individual’s or group’s membership (or perceived membership) in a protected class and such conduct is subjectively offensive to the individual and would be objectively offensive to an individual of the same protected class. Under the new definition, it will be easier for employees to claim and prove workplace harassment, though petty slights, minor annoyances, and lack of good manner generally would not constitute harassment.
    • Higher Standard for Affirmative Defenses Against Harassment Claims: The Act also establishes a higher standard for employers to meet to assert an affirmative defense to harassment claims. If an employee can prove harassment by a supervisor, the Act provides an affirmative defense if (1) an employer creates and maintains a program reasonably designed to prevent harassment, deter future harassers, and protect employees from harassment; (2) the employer takes prompt, reasonable action to address alleged discriminatory or unfair employment practices; (3) the employer communicates the program to supervisory and non-supervisory employees; and (4) the employee unreasonably fails to take advantage of the program.
  • Disability Discrimination: The POWR Act amends current law so that employers can no longer refuse to hire, discharge, or promote/demote because an otherwise qualified employee’s disability “has a significant impact on the job.” Rather, employers are prohibited from making adverse employment decisions based on an individual’s disability unless there is no reasonable accommodation that the employer can make for the disability that would allow the individual to satisfy the essential functions of the job and the disability disqualifies the individual from the job.
  • Protections Based on Marital Status: The POWR Act adds “marital status” as a protected category, meaning employers cannot take adverse action against employees due to their marital status.
  • Nondisclosure Agreements (NDAs): The POWR Act voids NDA provisions that limit the ability for an employee or prospective employee to disclose allegations of discriminatory or unfair employment practices unless certain requirements are met. An employee who is presented with such an NDA may bring an action to recover penalties, actual damages, reasonable costs, and attorney’s fees.

Recordkeeping: Employers are newly required to maintain any personnel or employment records related to complaints of discriminatory or unfair employment practices the employer made or received for at least 5 years. Employers must keep all written and oral complaints, and the records must include the date of the complaint, the individual filing the complaint, the identity of the alleged perpetrator, and the substance of the compliant.

Expansion of Existing Sick Leave Law

Effective August 7, 2023, Senate Bill (SB) 23-017 will expand CO’s existing paid sick leave law, the Healthy Families and Workplaces Act (HFWA). SB 23-017 will allow employees to use accrued paid sick leave for additional qualifying reasons, which include:

  • To grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after a family member’s death.
  • To care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss or water, or other unexpected occurrence that causes the closure.
  • To evacuate the employee’s residence due to inclement weather, loss of power, loss of heating, loss or water, or other unexpected occurrence that causes the need for evacuation.

Employer Action

To prepare for these changes, employers with CO employees may want to:

  • Create & maintain an anti-harassment program and train/communicate supervisory and non-supervisory employees about the program;
  • Review any current NDA templates to ensure it complies with the new requirements;
  • Implement a recordkeeping process whereby any written or oral complaints of discrimination or unfair employment practices are recorded and maintained for at least 5 years; and
  • Review any current sick leave policies to ensure it incorporates the new qualifying reasons employees can use accrued paid sick leave.

Additional Resources

The information and materials on this blog are provided for informational purposes only and are not intended to constitute legal or tax advice. Information provided in this blog may not reflect the most current legal developments and may vary by jurisdiction. The content on this blog is for general informational purposes only and does not apply to any particular facts or circumstances. The use of this blog does not in any way establish an attorney-client relationship, nor should any such relationship be implied, and the contents do not constitute legal or tax advice. If you require legal or tax advice, please consult with a licensed attorney or tax professional in your jurisdiction. The contributing authors expressly disclaim all liability to any persons or entities with respect to any action or inaction based on the contents of this blog. © 2023 Sequoia. All Rights Reserved.

Emerald Law — Emerald is a Senior Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music, and writing non-fiction.