Labor And Industry - Digest of Bills

Digest of Bills - 2009

LABOR AND INDUSTRY

S.B. 09-37 Workers' compensation - subsequent injury fund - major medical insurance fund. Limits the funding paid by employers insuring employers against liability for personal injury or death to their employees that is credited to the subsequent injury fund and the major medical insurance fund to the amount needed for anticipated claim payments and administrative costs in the following state fiscal year. Allows the director of the division of workers' compensation in the department of labor and employment to move revenues between the funds as necessary.

APPROVED by Governor June 1, 2009
EFFECTIVE August 5, 2009
NOTE: This act was passed without a safety clause. For further explanation concerning the effective date, see page vi of this digest.

S.B. 09-67 Colorado economic development commission - Colorado credit reserve program - appropriation. Authorizes the Colorado economic development commission to contract with the Colorado housing and finance authority for the operation of a Colorado credit reserve program for the purpose of increasing the availability of credit to small businesses in Colorado.

Appropriates $2,500,000 from the general fund to the Colorado economic development commission for the fiscal year beginning July 1, 2009, for the implementation of the act.

APPROVED by Governor May 7, 2009
EFFECTIVE May 7, 2009

S.B. 09-70 Workers' compensation - procedures. Clarifies the date that compensation for a workers' compensation injury must be paid. Repeals the requirement that workers' compensation shall cease when an employee reaches 65 years of age. Clarifies that a dissatisfied party in a workers' compensation case shall file a petition at the office of administrative courts if the supplemental order was issued by an administrative law judge. Clarifies that a cease-and-desist order or fine issued for the failure to maintain workers' compensation insurance shall include specific findings of fact that the employer received notice of a hearing in circumstances where a hearing is applicable. Clarifies that an administrative law judge shall not hear and decide workers' compensation matters pending before the director of the division of workers' compensation.

APPROVED by Governor March 24, 2009
EFFECTIVE August 5, 2009
NOTE: This act was passed without a safety clause. For further explanation concerning the effective date, see page vi of this digest.

S.B. 09-76 Employment and training technology fund - creation - allocation of employer tax surcharge from unemployment compensation fund - employment and training automation initiatives. Beginning July 1, 2009, through December 31, 2016, allocates 20% of the employer surcharge tax to the newly created employment and training technology fund for employment and training automation initiatives and decreases from 50% to 30% the amount allocated to the unemployment compensation fund. Requires the executive director of the department of labor and employment to allocate moneys back to the unemployment compensation fund if the moneys in the fund fall below $25 million, and allows the executive director to allocate moneys back to the unemployment compensation fund at any time.

APPROVED by Governor June 2, 2009
EFFECTIVE July 1, 2009

S.B. 09-168 Workers' compensation - procedures - independent medical examiner practices - time to seek recovery of overpayment of benefits - party bearing burden of proof for modification of admission or order - timing for a claimant to request a hearing on disputed issues - recording and reporting requirements for examinations of employees receiving workers' compensation benefits. Prevents an independent medical examiner from contacting an authorized treating physician or reviewing physician or from requiring a workers' compensation claimant to undergo repeat testing when testing results are valid and any disparity in testing results has been resolved.

Except in cases of fraud, requires an attempt to recover an overpayment of disability or death benefits under workers' compensation laws to be asserted within one year after the time that the requestor knew of the overpayment.

States that, in disputes arising under the "Workers' Compensation Act of Colorado" (Act), a party seeking to modify an issue determined by a general or final admission or summary or full order bears the burden of proof for any such modification.

Provides that a claimant for workers' compensation benefits who has requested an independent medical examination (IME) is not required to file a request for a hearing on disputed issues that are ripe until the IME process is terminated for any reason. Allows issues for which a hearing or an application for a hearing is pending when a final admission of liability is filed to continue to the hearing without the claimant refiling an application for the hearing.

Requires an examiner who conducts an examination of an employee with a right to compensation under the Act to make an audio recording of the examination and to prepare a written report of the examination. Requires the fact of the audio recording to be disclosed to the employee prior to the examination. Directs that division of workers' compensation in the department of labor and employment to promulgate rules to protect the privacy of such recordings and the information therein contained.

APPROVED by Governor April 22, 2009
EFFECTIVE April 22, 2009

S.B. 09-178 Unemployment insurance - employees attached to regular jobs - requirements to receive benefits - waiver during 2008 national economic recession. During the economic recession beginning in 2008, allows unemployed workers to receive unemployment insurance benefits without having to register for work or report to an employment office.

APPROVED by Governor May 18, 2009
EFFECTIVE May 18, 2009

S.B. 09-243 Workers' compensation - benefits - application of fee schedule - combination of mental and physical impairment rating - payment for medical treatment after initial denial. Specifies that the fee schedule for the payment of workers' compensation benefits shall apply to all surgical, hospital, dental, nursing, vocational rehabilitation, and medical services, and expert witness, expert reviewer, or expert evaluator services, whether related to treatment or not, provided after any final order, final admission, or full or partial settlement of the claim.

Requires the mental impairment rating to be combined with the physical impairment rating to establish a claimant's impairment rating for temporary and permanent disability payments.

Authorizes payment for an injured worker's medical treatment when compensability of the claim is initially denied and later found to be compensable if certain conditions are met.

APPROVED by Governor May 18, 2009
EFFECTIVE July 1, 2009

S.B. 09-247 Unemployment compensation expansion - eligibility for federal stimulus moneys - reporting requirements - appropriation. For purposes of qualifying for unemployment compensation modernization incentive payments from the federal government (federal stimulus moneys) made available to states under the federal "American Recovery and Reinvestment Act of 2009", expands the availability of unemployment benefits to certain unemployed individuals as follows:

Creates an alternative base period for an unemployed individual who has not earned sufficient wages for insured work during the existing base period to qualify for unemployment insurance benefits.

Modifies the eligibility criteria for unemployment benefits when a worker separates from a job due to domestic violence to allow benefits when the worker reasonably believes that continued employment jeopardizes his or her safety or that of the worker's spouse, parents, or minor children and the worker submits substantiating documentation to the division of employment and training (division) in the department of labor and employment.

Allows unemployment benefits to an individual who quits a job because of a change in employment location for the individual's spouse that necessitates a new place of residence for the individual, if the individual cannot practically commute to his or her current job and the individual, upon arrival to the new residence, is available for suitable work.

Allows unemployment benefits to an individual who quits work to care for an ill or disabled immediate family member who requires care of a duration longer than the amount of leave allowed the individual under his or her employer's medical leave of absence policy or under the federal "Family and Medical Leave Act of 1993", as long as the individual informs the employer of the family member's condition, if so required by the employer, and provides the division, upon request, with written verification of the family member's condition.

Authorizes enhanced unemployment insurance compensation benefits to eligible unemployment insurance claimants who are enrolled and making satisfactory progress in an approved training program that will train them for a high-demand occupation, a more stable, long-term occupation, or an occupation in the renewable energy industry. Repeals the availability of the enhanced unemployment insurance compensation benefits on July 1, 2012.

Authorizes total unemployment rate (TUR) extended benefits when the TUR equals or exceeds 6.5%, and allows up to an additional 20 weeks of unemployment benefits in high unemployment periods when the TUR equals or exceeds 8%.

Requires the division to submit an annual report to the joint budget committee, the business affairs and labor committee of the house of representatives, and the business, labor, and technology committee of the senate, detailing the total amount of federal stimulus moneys received and expended by the state in connection with each area of expansion of unemployment compensation benefits authorized pursuant to the act. Further requires the report to detail particular information regarding the outcomes of the enhanced unemployment insurance compensation benefits made available to individuals who undertake qualifying training to enter into a new career.

Appropriates $234,192 from the unemployment compensation fund to the division to implement the act. Further appropriates the following amounts to the division from moneys distributed under the federal "Social Security Act" to the Colorado unemployment insurance trust fund:

$500,000 for regional workforce center outreach; and

$1,055,392 and 6.2 FTE for the TUR extended benefits program.

APPROVED by Governor June 2, 2009
EFFECTIVE July 1, 2009

S.B. 09-258 Employee leasing companies - calculation of unemployment taxes - election of payroll report. Repeals the provision that makes an employee leasing company the only employing unit for covered employees for the purpose of calculating unemployment taxes. Allows employee leasing companies to make a one-time election to report payroll as the employing unit under its own unemployment accounts or under the individual account attributable to each work-site employer, with the right to make a one-time change from reporting as the employing unit to reporting under the respective accounts of each work-site employer. Precludes an employee leasing company that has elected to report payroll under the respective unemployment accounts of the work-site employers from later changing such election.

Makes the employee leasing company liable for the payment of all unemployment taxes regardless of the reporting method chosen. Specifies that the election made by an employee leasing company is binding on all entities related by common ownership to the employee leasing company.

APPROVED by Governor May 14, 2009
EFFECTIVE August 5, 2009
NOTE: This act was passed without a safety clause. For further explanation concerning the effective date, see page vi of this digest.

S.B. 09-281 Workers' compensation - Pinnacol Assurance - operation as political subdivision of state - financial and performance audits - legislative interim study. Specifies that the board of directors of Pinnacol Assurance has the powers, rights, and duties provided by law. Requires the state auditor to undertake an annual audit, and in 2009 a performance audit, of Pinnacol Assurance and to transmit such audit together with any comments and recommendations to the governor, the general assembly, the executive director of the department of labor and employment, and the commissioner of insurance. Specifies that the state auditor has continuing authority to conduct performance audits of Pinnacol Assurance. Establishes a legislative interim committee to meet during the 2009 interim to study the laws governing Pinnacol Assurance and to make recommendations on any policy changes with respect to these matters.

APPROVED by Governor June 1, 2009
EFFECTIVE June 1, 2009

H.B. 09-1054 Unemployment insurance benefits - surviving spouse of armed services member killed in combat - eligibility criteria. Allows the surviving spouse of a member of the United States armed forces who is killed in combat to claim a full award of unemployment insurance benefits if the surviving spouse:

Relocates to a new place of residence after the death of his or her active duty military spouse;

Is unable to commute to his or her current employment from the new place of residence; and

Is available for suitable work upon arrival at the new place of residence.

Requires the director of the division of employment and training (division) in the department of labor and employment to adopt rules to allow for a waiver of the obligation to actively seek work for individuals who are eligible for benefits under this act.

Specifies that the benefits are to be charged to the unemployment compensation fund rather than the employer.

Requires the division to track the number of claims made and the amounts awarded to surviving spouses and to submit an annual report to the business affairs and labor committee of the house of representatives and the business, labor, and technology committee of the senate, or their successor committees, detailing the number of claimants and amounts awarded.

Repeals the eligibility for benefits, effective July 1, 2019.

APPROVED by Governor March 25, 2009
EFFECTIVE March 25, 2009

H.B. 09-1057 Leave from work - attendance at academic activities of employee's child - limitations on amount of leave - employer emergencies - notice requirements - exceptions - substitution of accrued paid leave - employer compliance by providing comparable leave - repeal. Enacts the "Parental Involvement in K-12 Education Act", which allows an employee of an employer who is subject to the federal "Family and Medical Leave Act" to take leave from work for the purpose of attending academic activities for or with the employee's child. Defines "academic activity" as a parent-teacher conference regarding the employee's child or a meeting related to special education services, response to intervention, dropout prevention, school attendance, or disciplinary issues regarding the employee's child. Permits the leave for an employee who is the parent or legal guardian of a child enrolled in a public or private school or in a nonpublic home-based educational program in this state in kindergarten through twelfth grade.

Limits the amount leave to 6 hours per month and 18 hours in any academic year. For a part-time employee, allows the employee a portion of leave based on the percent of a full-time schedule that the employee works. Allows an employer to restrict the use of leave in cases of emergency or other situations that may endanger a person's health or safety or in a situation where the absence of the employee would result in a halt of service or production.

Permits the employer to require the employee to take leave in no greater than 3-hour increments and to provide written verification from the school or school district of the academic activity necessitating the leave. Directs employees to make reasonable attempts to schedule conferences or other activities outside of regular work hours, and requires schools and school districts to make best efforts to accommodate the schedules of working parents.

Requires the employee to provide the employer with at least one week's notice of the leave except in emergency situations where the employee is not aware of the need for leave one week in advance. When an employee takes leave without providing the requisite advance notice, requires the employee, upon return to work, to supply the employer with written verification of the academic activity from the school or school district.

Allows an employee or employer to elect to substitute accrued paid vacation leave, sick leave, personal leave, or other types of paid leave for the unpaid leave provided by the act. If an employee elects to use accrued paid leave to attend a child's academic activities, obligates the employer to allow the employee to use that accrued paid leave for the same purposes as, and with notice requirements no more stringent than, those applicable to the leave required by the act. Specifies that an employer is not required to provide its employees any additional leave as long as the employer provides its employees an amount of paid or unpaid leave sufficient to meet the requirements of the act and allows its employees to use that leave for the same purposes as, and with notice requirements no more stringent than, those applicable to the leave required by the act.

Repeals the act on September 1, 2015.

H.B. 09-1076 Unemployment insurance benefits - calculation of postponement of benefits. Treats all remuneration paid to a person due to separation from employment the same for the purpose of calculating the postponement of unemployment insurance benefits. Deletes the allowance of severance pay as a means of reducing the overall unemployment benefit. Eliminates the requirement to reduce benefit payments when social security benefits are received.

APPROVED by Governor June 2, 2009
EFFECTIVE June 2, 2009

H.B. 09-1092 Underground facilities - excavation safety requirements - notification association - routine maintenance of existing planted landscapes - exemption. Exempts from the excavation notification statute routine maintenance of existing planted landscapes if the earth is disturbed to a depth of no more than 12 inches by hand or 4 inches by machine and does not permanently lessen the ground cover or lower the existing ground contours. Requires the person performing such maintenance to do so with due care and to promptly notify the notification association if he or she discovers an underground facility.

APPROVED by Governor March 20, 2009
EFFECTIVE August 5, 2009
NOTE: This act was passed without a safety clause. For further explanation concerning the effective date, see page vi of this digest.

H.B. 09-1170 Labor disputes - eligibility for unemployment compensation benefits due to an employee lockout. Prohibits an individual who is unemployed due to a strike or labor dispute to collect unemployment compensation benefits unless the employee is not participating in, financing, or directly interested in the strike.

Prohibits a person from being determined ineligible for unemployment compensation benefits if the person is not a member of a multi-employer bargaining unit and the unemployment is due to a lockout or if the person is a member of a multi-employer bargaining unit and the unemployment is due to a lockout that was not initiated because of a strike or labor dispute involving a multi-employer bargaining unit member.

Prohibits a person who is a member of a multi-employer bargaining unit and is unemployed due to a lockout that was initiated because of a strike or labor dispute involving a multi-employer bargaining unit member from collecting unemployment compensation benefits.

VETOED by Governor May 19, 2009

H.B. 09-1309 Boilers - inspections - pressure tests - maximum fluid temperature of service and domestic-type water heaters. Increases the fluid temperature limitation of a service and domestic-type water heater from 200 degrees Fahrenheit to 210 degrees Fahrenheit.

Allows a boiler inspector to conduct a pressure test to assess the leak tightness capability of a boiler or pressure vessel upon seeing conditions that, in the inspector's discretion, indicate that a pressure-containing portion of the boiler or pressure vessel has deteriorated. Specifies that such test shall be conducted in accordance with the pressure testing considerations and guidance contained in the national board inspection code. Requires the owner or user of a boiler or pressure vessel to provide labor and equipment necessary for the performance of a hydrostatic pressure test.

APPROVED by Governor May 4, 2009
EFFECTIVE May 4, 2009

H.B. 09-1310 Unemployment insurance - misclassification of employee as independent contractor - investigation of complaints - penalties - payment of back taxes - advisory opinions - statewide study - report - appropriation. Charges the division of employment and training (division) in the department of labor and employment (department) with the responsibility to accept and investigate complaints about employers misclassifying employees as independent contractors and enforcing the requirements of the "Colorado Employment Security Act" (act) regarding the classification of employees and the payment of employment taxes for employees.

Authorizes the director of the division to investigate complaints, focusing on the most egregious complaints or those alleging intentional acts of misclassification undertaken to gain competitive advantage or avoid payment of taxes. Grants the director the authority to issue orders upon a finding that an employer has misclassified employees and to collect back taxes and interest from an employer who misclassified employees. Permits the director to impose the following additional fines and penalties when the director finds that the employer, with willful disregard of the law, misclassified employees:

A fine of up to $5,000 per misclassified employee for the first misclassification with willful disregard;

A fine of up to $25,000 per misclassified employee for a second or subsequent misclassification with willful disregard; and

Upon a second or subsequent misclassification with willful disregard, issue an order debarring the employer from state contracts for up to 2 years after the issuance of the order.

Requires the director to provide a copy of the written order to the employer and to make nonconfidential portions of the order available as a public record. Grants an employer the right to appeal the order.

Permits an employer to seek and, upon such request, requires the director to issue, a nonbinding advisory opinion concerning whether to classify an individual as an employee in order to comply with the act. Authorizes the director to adopt rules establishing the process for issuing advisory opinions and a fee to be charged to cover the costs of issuing advisory opinions.

Requires the executive director of the department to conduct a statewide study to determine the scope of the problem of employee misclassification, including whether the problem is widespread, whether particular industries are more inclined to engage in the practice, estimates of state revenues lost or not collected due to employee misclassifications, and whether a uniform definition of the employment relationship is needed. Requires the executive director to submit a report to specified committees of the general assembly regarding the statewide study and the operations of the division in investigating complaints, including:

The number of complaints submitted;

The number of complaints investigated;

The outcome of those complaints that were investigated; and

A recommendation regarding whether the division's functions concerning employee misclassification should be continued, modified, or repealed.

Appropriates $975 from the unemployment revenue fund and $9,840 from the employee misclassification advisory opinion fund to the division for the implementation of this act.

APPROVED by Governor June 2, 2009
EFFECTIVE June 2, 2009

H.B. 09-1363 Unemployment compensation - administration - designation of agency as enterprise. Designates the unemployment compensation section (section) of the division of employment and training in the department of labor and employment as an enterprise for purposes of section 20 of article X of the state constitution (TABOR), as long as the section retains the authority to issue revenue bonds and receives less than 10% of its total annual revenues in grants from state and local governments.

Clarifies that, as a TABOR enterprise, the section is authorized to continue its functions consistent with current law and is not to perform any functions of the employment service section of the division or under the "Colorado Work Force Investment Act". Excludes the employment support fund and its administration from the enterprise.

Authorizes the section to issue revenue bonds for expenses of the section, subject to approval from both houses of the general assembly and the governor before issuance of any revenue bonds.

Requires employers to pay premiums, premium surcharges, and a solvency surcharge, when applicable, instead of taxes, in order to provide for unemployment compensation benefits for workers who become unemployed and eligible for such benefits.

Makes the effectiveness of certain provisions of this act contingent upon Senate Bill 09-076 becoming or not becoming law.

APPROVED by Governor June 1, 2009
EFFECTIVE July 1, 2009
NOTE: Senate Bill 09-076 was signed by the governor June 2, 2009.