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Workers’ Compensation – Expediting Litigation of Claims

On June 10, 2016, Colorado Governor John Hickenlooper signed legislation (S.B. 217) amending the state’s workers’ compensation law. The bill establishes new requirements concerning the reduction of workers’ compensation payments in cases that involve an admission of liability (known as safety rule violations) by an employer and propose to reduce the amount of compensation paid to a claimant.

Under the bill, any reduction in compensation must include a statement from the employer listing the specific facts on which the reduction is based. If the insurer or self-insured employer admits liability for the claim, any party may request an expedited hearing if the application is filed within 45 days. The director of the Colorado Department of Labor and Employment (CDLE) is required to schedule the hearing within 60 days of the date of the application. If the party does not request an expedited hearing, the hearing must be set according to provisions under current law. Under the bill, the time frame for conducting any expedited hearing is extended from 40 days to 60 days from the date of application and the bill permits a party to request an expedited hearing on the question of whether a compliant designated medical provider list was provided.

The bill allows the CDLE to provide a standardized form to be used by the injured employee to request that his or her personal physician or chiropractor provide treatment or to request a change of physician. If an injured employee is permitted to change physicians, the bill clarifies that the initial physician’s relationship with the employee terminates once he or she visits the new physician. In addition, the initial physician’s authorized work restrictions and return to work opinions control until such time that a new physician expressly modifies them.

The bill goes into effect on July 1, 2016.

Read CO S.B. 217

Employee Inspection of Personnel Files

On June 10, 2016, Colorado Governor John Hickenlooper signed legislation (H.B. 1432) regarding an employee’s right to review his or her personnel file.

Pursuant to the law, an employer must — at least annually — permit a requesting current or former employee to inspect and obtain a copy of his or her personnel file. Reviews are to occur at the employer’s office at a time convenient to both parties. A former employee may make one inspection of his or her personnel file after termination of employment. An employer may restrict access to files only in the presence of a person responsible for managing personnel data and may require that the employee pay the reasonable costs for any duplication of documents.

Personnel file means the personnel records of an employee, in the manner maintained by the employer and using reasonable efforts by the employer to collect, that are used or have been used to determine the employee’s qualifications for employment, promotion, additional compensation, or employment termination or other disciplinary action. Personnel file does not include

  • Records required to be placed in a separate file by federal or state law or rule.
  • Records pertaining to confidential reports from previous employers of the employee.
  • Records relating to an active disciplinary investigation by the employer or a regulatory agency, or an active criminal investigation.
  • Any information in a document or record that identifies any person who made a confidential accusation, as defined by the employer, against the employee.

The law does not:

  • Create or authorize a private cause of action by a person aggrieved by a violation of the law.
  • Require an employer to create, maintain, or retain a personnel file on an employee or former employee.
  • Require an employer to retain any documents that are or were contained in an employee’s or former employee’s personnel file for any specified period of time.

The law does not apply to employers covered by the Colorado Open Records Act or to a financial institution chartered and supervised under state or federal law.

The law goes into effect on January 1, 2017.

Read CO H.B. 1432

Employment Verification – Repeal of Duplicate Reporting Requirements

On June 8, 2016, Colorado Governor John Hickenlooper signed legislation (H.B. 1114) regarding the state’s employment verification requirements. The bill repeals a Colorado provision requiring employers to submit a state form confirming completion of the federal I-9 form for employee verification.

The law goes into effect on August 10, 2016.

Read CO H.B. 1114

Reasonable Accommodations for Pregnant Workers

On June 1, 2016, Colorado Governor John Hickenlooper signed legislation (H.B. 1438) regarding employer accommodations for pregnant employees. The bill requires employers to engage in a timely, good-faith, interactive process when an employee or applicant requests reasonable accommodations related to pregnancy or physical recovery from childbirth. Reasonable accommodations may include:

  • The provision of more frequent or longer break periods.
  • More frequent bathroom, food, or water breaks.
  • Acquisition or modification of equipment or seating.
  • Limitations on lifting.
  • Temporary transfer to a less strenuous or hazardous position or light duty, if available.
  • Assistance with manual labor.
  • Modified work schedules, as long as certain conditions are met.

Employers must provide these accommodations to an applicant for employment or to an employee, if requested, unless the accommodations place an undue hardship on the employer’s business. Undue hardship means an action requiring significant difficulty or expense to the employer and can include consideration of the following factors:

  • The nature and cost of the accommodations.
  • The overall financial resources of the employer or overall size of the business.
  • The accommodation’s effect on expenses, resources, or operations.

In response to a request or need for reasonable accommodations related to pregnancy or childbirth, an employer may not:

  • Take adverse actions against an employee.
  • Deny employment opportunities to an applicant or employee.
  • Require an applicant or employee to accept an accommodation that the applicant or employee has not requested or is unnecessary.
  • Require an employee to take leave if the employer can provide another reasonable accommodation.

Employers must provide written notice of the right to be free from discriminatory or unfair employment practices related to these requirements to new employees and existing employees within 120 days of the bill’s effective date. Notice must also be posted in a conspicuous place. With the exception of posting the notice, any violation of these requirements constitutes a discriminatory or unfair employment practice.

The bill clarifies that it neither increases nor decreases an employee’s rights, under any other law, to paid or unpaid leave associated with the employee’s pregnancy. The bill also specifies that a court must not award punitive damages in a civil action involving a claim of failure to make reasonable accommodations for conditions related to pregnancy or childbirth if the defendant demonstrated good faith efforts to comply with the requirement.

The bill goes into effect on August 10, 2016.

Read CO H.B. 1438