Colorado Enacts A Slew Of New Employment Laws


By David Gartenberg and Mona Rainwater

Colorado’s 2023 legislative session resulted in a number of material changes to Colorado’s employment law landscape. The legislature passed new laws affecting many areas of the employment life cycle, spanning hiring, harassment and discrimination, paid leave, record-keeping requirements, non-disclosure agreements and more.

The Protecting Opportunities and Workers’ Rights Act Modifies the Standard for Harassment Claims, Protects Marital Status Under the Law and Imposes New Record-Keeping and Non-Disclosure Obligations

The POWR Act is perhaps the most sweeping change to employment law that passed this session, and it is also one of the laws that takes effect most imminently. Its provisions became effective on Aug. 7.

The part of the POWR Act that has drawn the most attention is its loosening of the standard under which employees may establish a harassment claim. Previously, the Colorado Anti-Discrimination Act applied the same “severe or pervasive” standard as under federal law, which required proof of conduct that was so severe or pervasive that it created a work environment a reasonable person would consider intimidating, hostile or abusive. The POWR Act expressly discards this standard and redefines “harassment” to mean any conduct or communication that is “subjectively offensive to the individual alleging harassment and is objectively offensive to a reasonable individual who is a member of the same protected class.” While the precise contours of this standard will be subject to much litigation, it cannot be denied that the standard lowers the threshold for viable harassment claims under the CADA.

But the POWR Act does more than just alter the standard for harassment claims. It also adds “marital status” as a protected category in the employment context. Previously, marital status was protected in places of public accommodation, but such protections were limited in the employment context. Under the POWR Act, marital status is expressly protected in the employment context as well, meaning that employers cannot take any adverse action against an employee based on their marital status.

The law also imposes rigid non-disclosure requirements on agreements that limit employees’ ability to discuss or disclose any discriminatory or unfair employment practice, and subjects employers to monetary fines of up to $5,000 per violation for presenting a non-compliant agreement (among other penalties). And it requires an employer to maintain “any personnel or employment record” the employer made or received for at least five years, and, specifically with regard to complaints of discriminatory or unfair employment practices, to maintain those records in a “designated repository.”

Expansion of Sick Pay Obligations Under Healthy Families & Workplaces Act

Another change that took effect Aug. 7 is an expansion of the reasons Colorado employees may take paid sick leave. Since 2021, the HFWA has required Colorado employers to provide up to 48 hours of paid sick leave for a variety of reasons, including for their own mental or physical illness or a need for preventative care, and to care for a family member who has such an illness or need for preventative care. Now the reasons employees can access paid sick leave have expanded to include:

  1. Grieving, funeral/memorial attendance or financial/legal needs after a death of a family member
  2. Inclement weather, power/heat/water loss or other unexpected event, the employee must evacuate their residence or care for a family member whose school or place of care was closed.

Colorado employers should make sure to modify their sick leave policies to make clear that employees can access sick leave for these additional reasons.

Another recent sick leave development was the expiration of the obligation to provide supplemental paid leave under the HFWA in connection with the COVID-19 public health emergency. Since Jan. 1, 2021, Colorado employers were required to provide up to 80 hours of supplemental paid leave for a variety of conditions relating to COVID-19 in addition to their other sick leave obligations under the HFWA. With the expiration of all applicable public health emergency declarations in connection with COVID-19, that obligation ended as of June 9, 2023. However, the obligation to provide this category of leave could recur in the event that a future public health emergency declaration is made, such as in the case of a particularly serious flu season.

Amendments to Equal Pay for Equal Work Act

Besides tweaking the HFWA, the Colorado legislature also took a second look at the EPEWA, which first took effect in 2021. Unlike the POWR Act and HFWA expansion, these amendments don’t take effect until next year, on Jan. 1, 2024.

At that point, employers will be required to notify Colorado employees of any job opportunity within an organization prior to making a selection decision. Employers must include in each job opportunity notification (1) the hourly or salary compensation or range of compensation; (2) a general description of benefits and other compensation; and (3) the date the application window will close. However, if the employer is physically located outside of Colorado and has fewer than 15 employees in Colorado — all of whom work remotely — then the employer is only required to post remote job opportunities, not all openings company-wide. Also, unlike under the pre-amended version of the law, career progression promotions — such as an employee moving from a junior to a mid-level role as they gain seniority — would not trigger any posting or disclosure obligations.

Employers’ disclosure obligations will also extend beyond pre-hire notification. Once the law takes effect, employers will be required to announce the name, new job title and former job title (if the hire was internal), for each selected candidate within 30 calendar days after the candidate’s start date. This notice must be provided to, at minimum, the employees with whom the selected candidate is intended to work.

Lastly, the amendments enlarge the period of time employees can recover back pay for gender-based pay disparities from three to six years.

Limitations on Age-Inquiries in the Hiring Process Under the Job Application Fairness Act

The last major change to employment law, called JAFA, also has the longest period before it takes effect. JAFA does not impose any new obligations until July 1, 2024. This law is intended to deter age discrimination in the hiring process, and, to that end, it prohibits employers from inquiring about an applicant’s age in an initial job application. The specific information JAFA forbids employers from inquiring about includes an applicant’s (1) age, (2) date of birth, and (3) dates of attendance at or graduation from an educational institution.

However, employers are still able to verify compliance with certain age requirements in an initial employment application. For example, an employer could ask applicants to verify they are age 18 or older so as to ensure compliance with state and federal law on employing minors. Employers could also ask applicants to verify that they have a college degree, but they could not require the employee to identify when they obtained the degree.


The Colorado legislature has for years had an active focus on employment legislation, and the 2023 session was certainly no different. Colorado employers should take steps to ensure their hiring and employment practices are compliant with all of the new requirements imposed by this panoply of new laws.

David Gartenberg is a shareholder in the Denver office of Littler, the world’s largest employment and labor law practice representing management. He advises employers of all sizes in complex litigation and employment law in federal and state courts nationwide. David can be reached at [email protected]Monaliza Rainwater is an associate in Littler’s Denver office. She focuses her practice on labor and employment law matters and can be reached at [email protected].

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