Colorado Legislation Update: Employee Access to Personnel Files and Pregnancy Accommodation

The Colorado Legislature will adjourn Friday, May 6, 2016, but two pieces of legislation remain that could have a significant impact on Colorado employers.  The bills would require Colorado employers to provide access to personnel files, and potentially provide reasonable accommodations to applicants and employees for conditions related to pregnancy or childbirth.  This article analyzes each bill and its potential impact on Colorado employers, and provides an update on other pieces of employment-related legislation that failed to pass in Colorado this session.

Colorado Employees Will Likely Soon Have Access to Their Personnel File

In January, Campbell Litigation reported on several pieces of employment-related legislation it anticipated to make its way through the Colorado Legislature (see related article), including House Bill 16-1432, which would require Colorado employers who keep personnel files to provide employees and former employees access to their personnel file upon request.[1] On Monday, May 2, 2016, the Colorado Legislature passed House Bill 16-1432, and it is expected that Colorado Governor John Hickenlooper will sign the bill. 

While the Colorado Legislature amended the bill to remove the employee or former employee’s ability to add rebuttal information to their personnel file, if enacted, Colorado employers will still be required to annually permit a requesting employee to inspect and obtain a copy of the employee’s personnel file.[2]  Further, an employer must also, upon request, provide a terminated employee access to his or her personnel file one time after the employee’s termination.[3]  The bill will not provide employees with access to portions of their personnel file dealing with active criminal, disciplinary, or regulatory investigations, but will likely be a significant burden for Colorado employers, and gives disgruntled employees, or former employees, the ability to comb through their personnel file in an attempt to create a legal claim against their employer or former employer.  If enacted, the bill[4] will take effect January 1, 2017, however, employers should begin now to craft policies that dictate how they will handle current and former employee requests for access to their personnel files, including tracking the requests and access provided; ensuring active investigations are withheld from the file when produced to the employee; and ensuring confidential matters related to other employees, that may be contained in the file, are properly protected.

Colorado House of Representatives Passes Pregnancy Accommodation Bill

On Friday, April 29, 2016, the Colorado House of Representatives passed House Bill 16-1438, which would require Colorado employers to provide reasonable accommodations to applicants and employees for conditions related to pregnancy or childbirth.[5]  While the House of Representatives amended the bill, at the request of the business community, to track more closely with the Americans with Disability Act (“ADA”) and the Pregnancy Discrimination Act (“PDA”), if enacted, the bill will apply to all private Colorado employers who employ at least one (1) person within the state.[6]  Colorado employers who otherwise are not required to comply with the ADA or the PDA, would have to comply with House Bill 16-1438’s provisions. 

Under House Bill 16-1438, an employee may present her employer with a request for a reasonable accommodation based on a condition related to pregnancy or childbirth.[7]  After receiving such a request, the employer may require the employee to provide a medical note stating the necessity of the reasonable accommodation.[8]  The employer and the employee must then engage in a timely, good-faith, and interactive process to determine what may be a reasonable accommodation for conditions related to pregnancy or childbirth.[9]  Importantly, the employer is not required to provide the employee’s requested accommodation, only a reasonable accommodation to allow the employee to perform the essential functions of the job.[10]  Further, an employer is not required to provide an otherwise reasonable accommodation where the accommodation imposes an undue hardship on the employer’s business.[11]  Currently, House Bill 16-1438 has been introduced in the Senate and has been assigned to the Business, Labor, & Technology committee. 

Other Employment-Related Bills Die in Legislature

The remaining bills discussed in Campbell Litigation’s January report will not be enacted during the current session.  The proposed revival of the Parental Involvement in K-12 Education Act of 2009 was postponed indefinitely on March 9, 2016.[12]  House Bill 16-1000, which would make it a discriminatory act for employers to ask potential employees about their previous salary history,[13] along with Senate Bill 16-076, which would eliminate verification requirements for employers,[14] also failed to pass through the legislature.  Finally, the Colorado Legislature tabled the attempt to redefine “employer,” an effort to correct the impact of the National Labor Relations Board’s joint employer efforts on Colorado law, to only include a person that possesses authority to control an employee’s terms and conditions of employment and exercise that authority directly.[15]

 

[1] See House Bill 16-1432.  House Bill 16-1432 would add § 8-2-129 to the Colorado Revised Statutes.

[2] Id.

[3] Id.

[4] The bill does not create a private right of action by an aggrieved current or former employee, but also fails to provide guidance on how (or whether) the State of Colorado may pursue a violation of the bill.

[5] See House Bill 16-1438.

[6] The ADA and PDA only apply to private employers with fifteen (15) or more employees. 

[7] See House Bill 16-1438.  House Bill 16-1438 would add § 24-34-402.3 to the Colorado Revised Statutes.

[8] Id.

[9] Id.

[10] Id.

[11] Id.  “Undue Hardship” in this context “means an action requiring significant difficulty or expense to the employer.”  The bill also provides factors to determine whether the employer would suffer an undue hardship, including: (1) the nature and cost of the accommodation; (2) the overall financial resources of the employer; (3) the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities; and (4) the accommodation’s effect on expenses and resources or its effect upon the operation of the employer.

[12] See House Bill 16-1002.

[13] See House Bill 16-1001.

[14] See Senate Bill 16-076.

[15] See House Bill 16-1154.

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