Blogs | WorkSmarts: Workplace Solutions

On Monday, December 21, the stimulus bill from Congress was released. The bill contains individual relief, as well as an extension of federal unemployment assistance benefits. The bill did not, however, contain an extension of the mandatory paid leave benefits provided under the Families First Coronavirus Response Act (“FFCRA”). The stimulus does contain an extension through the end of March, 2021 of the tax credits provided for under the FFCRA leave. As a result, the mandate for FFCRA leave will formally sunset on December 31, 2020, but employers who voluntarily provide leave under the original provisions of the law may be able to qualify for tax credits through the end of March, 2021.

No Pay Discrimination for Substantially Similar Work, and New Job Posting Rules

On January 1, 2021, the Equal Pay for Equal Work Act (“EPEWA” or “the Act”) becomes effective in Colorado.  C.R.S. § 8-5-101 et seq.  The Act applies to virtually all employers in the state, regardless of size, and is intended to “close the pay gap” between men and women and “ensure that employees with similar job duties are paid the same wage rate regardless of sex,” which it defines broadly as “gender identity.”  The Act has two major parts: (1) Part 1 amends Colorado’s previous equal pay statute by broadening the prohibition against wage discrimination to include paying employees of different sexes less for “substantially similar work”; and (2) Part 2 provides for “transparency in pay and opportunities for promotion and advancement” by requiring employers to announce opportunities for promotion and to disclose wage and benefit information in all job postings.

The first COVID-19 vaccines have been released, with more to come in the near future. This landmark development raises important questions – can employers require their employees to get the COVID-19 vaccine as a term and condition of continued employment when it becomes available to them? And if an employer implements such a mandate, would it be lawful?

On September 22, 2020, the Department of Labor (“DOL”) issued proposed regulations that are intended to clarify the standard for determining whether a worker qualifies as an independent contractor for Fair Labor Standards Act (“FLSA”) purposes. See RIN 1235-AA34 (Independent Contractor Status under the Fair Labor Standards Act).

During the week of July 20^th, the Wage and Hour Division of the Department of Labor published new guidance for employers, focusing on compliance under the Fair Labor Standards Act (“FLSA”) and the Family and Medical Leave Act (“FMLA”) in the midst of the pandemic (See FLSA Q&A, FMLA Q&A, and FFCRA Q&A).

On July 14, 2020, Governor Jared Polis signed the “Healthy Families and Workplaces Act” (“HFWA”).  Several provisions of this law are effective immediately (July 15, 2020), and require paid sick leave specifically for COVID-19 related issues.  Starting January 1, 2021, the HFWA will require that most employers provide their employees with up to 48 hours of paid sick leave per year.  This article is Part 1 of a two-part series, and focuses on the immediately effective laws relating to COVID-19. We will discuss the details of the general paid sick leave in Part 2.  Governor Polis also recently signed the Public Health Emergency Whistleblower Law (“PHEW”), effective July 11, 2020, which we will discuss briefly below.

On July 8, 2020, the Supreme Court expanded the scope of the “ministerial exception” to employment discrimination statutes. This exception is grounded in the First Amendment’s protections for religious institutions. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court considered two cases involving elementary school teachers in Catholic schools who alleged that they were terminated in violation of federal employment discrimination law. Seven justices joined the majority opinion of the Court, holding that “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” A link to the full decision of the Court can be found here.

On June 15, 2020, the Supreme Court held that Title VII’s prohibition of “sex” discrimination also prohibits discrimination because of sexual orientation and transgender status. See Bostock v. Clayton County, Case No. 17-1618 (Slip Opinion). Therefore, “an employer who fires an individual merely for being gay or transgender violates Title VII.” Id. at pg. 1.