Colorado Revised Statutes 2013
TITLE 8
LABOR AND INDUSTRY
LABOR I - DEPARTMENT OF LABOR AND EMPLOYMENT
Division of Labor - Industrial Claim Appeals Office
ARTICLE 1
Division of Labor Industrial Claim Appeals Office
8-1-101. Definitions. As used in this article, unless the context otherwise requires:
(1) "Commission" means the industrial commission of Colorado, as said
commission existed prior to July 1, 1986.
(2) "Commissioner" means one of the members of the commission.
(2.5) "Department" means the department of labor and employment.
(3) "Deputy" means any person employed by the division designated as such
deputy by the director, and who may be engaged in the performance of duties under the
direction of the director.
(4) "Director" means the director of the division of labor.
(5) "Division" means the division of labor in the department of labor and
employment.
(6) "Employee" means every person in the service of an employer, under any
contract of hire, express or implied, not including an elective official of the state, or of
any county, city, town, irrigation, drainage, or school district thereof, and not including
any officers or enlisted men of the National Guard of the state of Colorado.
(7) (a) "Employer" means:
(I) The state, and each county, city, town, irrigation, and school district therein,
and all public institutions and administrative boards thereof having four or more
employees;
(II) Every person, association of persons, firm, and private corporation, including
any public service corporation, manager, personal representative, assignee, trustee, and
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receiver, who has four or more persons regularly engaged in the same business or
employment, except as otherwise expressly provided in this article, in service under any
contract of hire, expressed or implied.
(b) This article is not intended to apply to employers of private domestic servants
or farm and ranch labor; nor to employers who employ less than four employees regularly
in the same business, or in or about the same place of employment.
(8) "Employment" means any trade, occupation, job, position, or process of
manufacture or any method of carrying on any such trade, occupation, job, position, or
process of manufacture in which any person is engaged, except as otherwise expressly
provided in this article.
(8.5) "Executive director" means the executive director of the department of labor
and employment.
(9) "General order" means an order of the director applying generally throughout
the state to all persons, employments, or places of employment under the jurisdiction of
the division. All other orders of the director shall be considered special orders.
(10) "Local order" means any ordinance, order, rule, or determination of any
common council, board of aldermen, board of supervisors, board of trustees, or board of
commissioners of any county, town, city, or city and county operating under any general
or special law of this state or of the board of health of the state or any municipality therein
or any order or direction of any official of the state or municipality therein.
(11) "Order" means any decision, rule, regulation, requirement, or standard
promulgated by the director.
(12) "Place of employment" means every place, whether indoors or outdoors or
underground, and the premises, work places, works, and plants appertaining thereto or
used in connection therewith where either temporarily or permanently any industry, trade,
or business is carried on, or where any process or operation directly or indirectly relating
to any industry, trade, or business is carried on, or where any person is directly or
indirectly employed by another for direct or indirect gain or profit, except as otherwise
expressly provided in this article.
(13) "Safe" or "safety", as applied to an employment or place of employment,
means such freedom from danger to the life, health, and safety of employees and such
reasonable means of notification, egress, and escape in case of catastrophe as the nature
of the employment reasonably permits.
(14) "State personnel system" means the personnel system of the state as described
in section 13 of article XII of the state constitution and the state personnel system as
described in article 50 of title 24, C.R.S.
8-1-102.
Industrial claim appeals office - creation - powers and
duties. (1) There is hereby created in the office of the executive director of the
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department of labor and employment the industrial claim appeals office, which may
consist of five industrial claim appeals examiners, who shall be appointed to serve on the
industrial claim appeals panel by the executive director pursuant to section 13 of article
XII of the state constitution and the laws and rules governing the state personnel system.
Each industrial claim appeals examiner shall exercise such examiner's powers and
perform such examiner's duties and functions in the industrial claim appeals office within
the office of the executive director of the department as if transferred thereto by a type 2
transfer as such transfer is defined in the "Administrative Organization Act of 1968",
article 1 of title 24, C.R.S. Decisions and orders of the industrial claim appeals panel may
be made by two appeals examiners. In the event of a disagreement between such two
appeals examiners, a third appeals examiner shall review the case, and the decision and
final order of the appeals panel shall reflect the collective decision of all three appeals
examiners.
(2) The industrial claim appeals panel has the duty and the power to conduct
administrative appellate review of any order entered pursuant to articles 43 and 74 of this
title and to make a decision on said appeal.
8-1-103.
Division of labor - director - employees - qualifications compensation - expenses. (1) There is hereby created a division of labor in the
department of labor and employment. Pursuant to section 13 of article XII of the state
constitution, the executive director of the department of labor and employment shall
appoint the director of the division of labor, and the director shall appoint such deputies,
experts, statisticians, accountants, inspectors, clerks, and other employees as are
necessary to carry out the provisions of law and to perform the duties and exercise the
powers conferred by law upon the division and the director. The director shall be the chief
administrative officer of the division with such powers, duties, and functions as
prescribed by law.
(2) All employees, except experts, shall have been for one year prior to such
employment or appointment bona fide residents of this state and, while in the employ of
the division, shall receive such compensation as is fixed by the state personnel system
laws of this state, such compensation to be paid monthly from funds appropriated for the
use of the division. All expenses incurred by the division and its employees pursuant to
the provisions of law shall be paid from funds appropriated for its use upon the approval
of the director. The traveling expenses of the director or of any employee of the division
incurred while on business of the division outside this state shall be paid in the manner
prescribed in this subsection (2), but only when such expenses are authorized in advance.
(3) The powers, duties, and functions of the director prescribed under this article,
including rule-making, regulation, licensing, promulgation of rules, rates, regulations, and
standards, and the rendering of findings, orders, and adjudications, shall be performed
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under the direction and supervision of the executive director of the department of labor
and employment, as prescribed by section 24-1-105 (4), C.R.S.
8-1-104. Director - seal.
(1) Repealed.
(2) The director shall have a seal upon which shall be inscribed the words
"Director - Division of Labor - Department of Labor and Employment - Colorado - Seal".
His seal shall be affixed to all orders, awards, and copies thereof of the division and to
such other instruments as the director shall direct.
(3) All courts of the state shall take judicial notice of said seal. Any copy of an
order, award, or record of the director under his seal shall be received in all courts as
evidence as if such copy were the original thereof.
8-1-105. Offices and supplies. The division shall have offices in the city and
county of Denver and at such other places in the state as the executive director of the
department may direct. The division shall be provided with suitable office space by the
office of state planning and budgeting. The division is authorized to procure all necessary
office furniture, stationery, books, periodicals, maps, instruments, apparatus, appliances,
and other supplies and incur such other expenses as necessary, and the same shall be paid
for in the same manner as other expenses authorized by law. The director or any deputy or
referee of the division may hold sessions at any place other than the city and county of
Denver when the convenience of the director, deputy, referee, or parties interested
requires.
8-1-106. Records - sessions.
(1) Repealed.
(2) The division shall keep a full and accurate record of all proceedings of the
division and issue all necessary processes, writs, warrants, orders, awards, and notices as
the director or any deputy or referee may require. The director shall supervise the
collection of data and information concerning matters within the jurisdiction of the
division and shall make such reports thereon as the executive director of the department
of labor and employment may require.
(3) The sessions of the director or any deputy or referee of the division shall be
open to the public and shall stand and be adjourned without further notice thereof on the
record. All proceedings of the division shall be shown on its records, which shall be
public records.
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8-1-107. Powers and duties of director - rules.
(1) Repealed.
(2) In addition to any other duties prescribed by law, the director has the duty and
the power to:
(a) Appoint advisors who, without compensation, shall advise the director relative
to the duties imposed upon the director by articles 1 to 18 of this title and part 3 of article
34 of title 24, C.R.S.;
(b) Inquire into and supervise the enforcement, with respect to relations between
employer and employee, of the laws relating to child labor, laundries, stores, factory
inspection, employment offices and bureaus, and fire escapes and means of egress from
places of employment and all other laws protecting the life, health, and safety of
employees in employments and places of employment;
(c) to (h) Repealed.
(i) Accept, use, disburse, and administer all federal aid or other property, services,
and moneys allotted to the division as part of any grant-in-aid safety program authorized
by an act of congress and to make such agreements, not inconsistent with any act of
congress and the laws of this state, as may be required as a condition precedent to
receiving such funds or other assistance. Such acceptance, conditions, and agreement
shall not be effective unless and until the director has recommended to and received the
written approval of the governor and the executive director of the department. The state
treasurer is designated custodian of all funds received pursuant to this paragraph (i) from
the federal government, and he shall hold such funds separate and distinct from state
funds and is authorized to make disbursements from such funds for the designated
purpose or administrative costs which may be provided in such grants-in-aid, upon
warrants issued by the controller and upon the voucher of the director.
(j) Repealed.
(k) Collect and collate statistical and other information relating to the work under
his jurisdiction. All materials of the division circulated in quantity outside the executive
branch shall be issued in accordance with the provisions of section 24-1-136, C.R.S. The
director shall cause to be printed and, upon application, furnished free of charge to any
employer or employee such blank forms as he shall deem required for the proper and
efficient administration of articles 1 to 18 of this title and part 3 of article 34 of title 24,
C.R.S., all such records to be kept in the offices of the division. Copies of orders,
regulations, and rules of procedure shall be made for distribution in a manner to constitute
sufficient publication as required by law.
(l) to (o) Repealed.
(p) Adopt reasonable and proper rules and regulations relative to the exercise of
his powers and proper rules and regulations to govern the proceedings of the division and
to regulate the manner of investigations and hearings and to amend said rules and
regulations from time to time in his discretion. Such rules and regulations, and
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amendments thereto, shall be made in accordance with section 24-4-103, C.R.S.
(q) Repealed.
(r) Promulgate rules to implement the provisions of section 26-2-716 (3) (b),
C.R.S.
8-1-108. Orders effective - when - validity presumed. (1) All general orders
shall be effective ten days after they are adopted by the director and posted upon the
bulletin board of the division in its offices in the city and county of Denver. Special
orders shall take effect as therein directed.
(2) The director, upon application of any person, may grant such time as may be
reasonably necessary for compliance with any order. Any person may petition the director
for an extension of time, which the director shall grant if he finds such an extension of
time necessary.
(3) All orders of the division shall be valid and in force and prima facie
reasonable and lawful until they are found otherwise in an action brought for that
purpose, pursuant to the provisions of this article, or until altered or revoked by the
director.
(4) Substantial compliance with the requirements of this article shall be sufficient
to give effect to the orders or awards of the director, and they shall not be declared
inoperative, illegal, or void for any omission of a technical nature with respect thereto.
8-1-109. Employer to furnish safe place to work. (Repealed)
8-1-110. Unsafe places - investigation - report - order. (Repealed)
8-1-111. Jurisdiction over employer and employee relation. The director is
vested with the power and jurisdiction to have such supervision of every employment and
place of employment in this state as may be necessary adequately to ascertain and
determine the conditions under which the employees labor, and the manner and extent of
the obedience by the employer to all laws and all lawful orders requiring such
employment and places of employment to be safe, and requiring the protection of the life,
health, and safety of every employee in such employment or place of employment, and to
enforce all provisions of law relating thereto. The director is also vested with power and
jurisdiction to administer all provisions of this article with respect to the relations
between employer and employee and to do all other acts and things convenient and
necessary to accomplish the purposes of this article including entering into reciprocal
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agreements with other states and governmental entities.
8-1-112. Officers to assist in enforcing orders. It is the duty of all officers and
employees of the state, counties, and municipalities, upon request of the director, to
enforce in their respective departments all lawful orders of the director, insofar as the
same may be applicable and consistent with the general duties of such officers and
employees. It is also their duty to make such reports as the director may require
concerning matters within their knowledge pertaining to the purposes of this article and to
furnish to the division such facts, data, statistics, and information as may from time to
time come to them pertaining to the purposes of this article and the duties of the division
thereunder, and particularly all information coming to their knowledge respecting the
condition of all places of employment subject to the provisions of this article as regards
the health, protection, and safety of employees and the conditions under which they labor.
It is the duty of the division to collect and compile such data, facts, and information as
shall come to it concerning the relations between employer and employee and relating in
any way to the provisions of this article.
8-1-113. Agents of division and director - powers. (1) For the purpose of
making any investigation with regard to any employment or place of employment or other
matter contemplated by the provisions of this article, the director, with the approval of the
executive director of the department of labor and employment, has the power to appoint
temporarily, by an order in writing, any deputy or any other competent person as an agent,
whose duties shall be prescribed in such order.
(2) In the discharge of his duties such agent has every power whatsoever for
obtaining information granted in this article to the director and the division, and all
powers granted by law to officers authorized to take depositions are granted to such
agent.
(3) The director may conduct any number of investigations contemporaneously
through different agents and may delegate to such agents the taking of all testimony
bearing upon any investigation or hearing. The decision of the director shall be based
upon his examination of all testimony and records. The recommendations made by such
agent shall be advisory only and shall not preclude any further investigation or the taking
of further testimony if the director so orders.
8-1-114. Employers and employees to furnish information - penalty. (1) Upon
request, every employer and employee shall furnish the division all information required
by it to accomplish the purposes of this article, which information shall be furnished on
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blanks to be prepared by the division. It is the duty of the division to furnish such blanks
to the employer free of charge upon request therefor. Every employer receiving from the
division any blanks, with directions to fill out same, shall answer fully and correctly all
questions therein propounded and give all the information therein sought, or, if unable to
do so, he shall give in writing good and sufficient reasons for the failure. The director
may require that the information required to be furnished be verified under oath and
returned to the division within the period fixed by him or by law. The director, or any
person employed by the division for that purpose, has the right to examine, under oath,
any employee or employer, or the officer, agent, or employee thereof, for the purpose of
ascertaining any information which such employer or employee is required by this article
to furnish to the division.
(2) Any employer or employee who fails or refuses to furnish such information as
may be required by the division under authority of this article is guilty of a misdemeanor
and, upon conviction thereof, shall be punished by a fine of two hundred dollars if an
employer and twenty-five dollars if an employee.
8-1-115. Information not public - penalty for divulging. (1) The information
contained in the reports lawfully required to be furnished by the employer in section 8-1114, such other information as may be furnished to the division by employers and
employees in pursuance of the provisions of this article, and such information obtained
through inspections or other proceedings of this article which might reveal a trade secret
shall be for the exclusive use and information of said division in the discharge of its
official duties. The director may treat and file the information or any part thereof as
confidential, and, when so treated or filed by the director, the same shall be considered to
be confidential information for the sole use of the division and shall not be open to the
public nor be used in any court in any action or proceeding pending therein unless the
division is a party to such action or proceeding. The court shall issue such orders as may
be appropriate to protect the confidentiality of trade secrets. The information contained in
this report may be tabulated and published by the division in statistical form for the use
and information of other state departments and the public.
(2) Any person in the employ of the division who divulges any confidential
information to any person other than the director shall be punished by a fine of not more
than one thousand dollars and shall thereafter be disqualified from holding any
appointment or employment with any department under the state.
(3) Pursuant to this section, the director shall provide a physical environment and
establish policies and procedures to ensure confidentiality for all information regarding
any employer, employee, or person pertaining to any action pursuant to articles 1 to 13 of
this title; except that such information may be released if there exists an overriding need
for access to such information arising pursuant to articles 1 to 13 of this title in
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connection with:
(a) A dispute resolution, a mediation, or an administrative or judicial proceeding;
or
(b) A cooperative effort with another subdivision of government.
8-1-116. Investigators to have access to premises. (1) The director and any
other person authorized in writing by the director at any reasonable time may enter any
building, surface construction and demolition, factory, workshop, place, or premises of
any kind wherein, or in respect of which, any industry except mining is carried on, any
work is being or has been done or commenced, or any matter or thing is taking place
which has been made the subject of any investigation, hearing, or arbitration by the
division; inspect any work, material, machinery, appliance, or article therein; and
interrogate any persons in or upon any such building, factory, workshop, place, or
premises, except mines, mine workings, and ore milling operations, with respect to any
matter or thing mentioned in this article.
(2) Any person who hinders or obstructs the director or any such person
authorized by the director in the exercise of any power conferred by this article, or any
employer who in bad faith refuses reasonable access to his premises, or any person who
gives advance notice of any inspection to be conducted under this article without
authority from the director or his designee is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not more than one thousand dollars, or
by imprisonment in the county jail for not more than six months, or by both such fine and
imprisonment.
8-1-117. Director to have access to books - penalty. (1) All books, records, and
payrolls of employers, showing or reflecting in any way upon the amount of wage
expenditure of such employers, and other data, facts, and statistics appertaining to the
purposes of this article shall always be open for inspection by the director or any of his
deputies or agents for the purpose of ascertaining the conditions of employment and such
other information as may be necessary for the uses and purposes of the director in his
administration of the law.
(2) Any employer who refuses to exhibit and furnish said director or any agents of
the division an inspection of any books, records, and payrolls of such employer, showing
or reflecting in any way upon the amount of wage expenditure of such employers, and
other data, facts, and statistics appertaining to the purposes of this article or who refuses
to admit such director or any agent of the division to any place of employment shall pay a
penalty of not less than fifty dollars for each day that such failure, neglect, or refusal
continues.
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8-1-118. Rules of evidence - procedure. The director, or persons designated by
him, shall not be bound by the usual common law or statutory rules of evidence or by any
technical or formal rules of procedure, other than as provided in this article or by the rules
of the division, but he may make such investigations in such manner as in his judgment
are best calculated to ascertain the substantial rights of the parties and to carry out justly
the spirit of this article.
8-1-119. Record of proceedings. (1) A full and complete record shall be kept of
all proceedings had before or under the order of the director on any investigation, and all
testimony shall be taken down by a shorthand reporter appointed by the director.
(2) A transcribed copy of the evidence and proceedings, or any specific part
thereof, of any investigation or hearing taken by a shorthand reporter appointed by the
director, being certified by such shorthand reporter to be a true and correct transcript of
the testimony, or a specific part thereof, on the investigation or hearing of a particular
witness, carefully compared by him with his original notes, and to be a correct statement
of the evidence and proceedings had on such investigation or hearing so purporting to be
taken and subscribed, may be received as evidence by the director or any agent of the
division and by any court with the same effect as if such shorthand reporter were present
and testified to the facts so certified. A copy of such transcript shall be furnished on
demand to any party upon the payment of fifty cents per folio.
8-1-120. Depositions. In any investigation, the director or any other party may
cause the depositions of witnesses residing within or without the state to be taken in the
manner prescribed by law for like depositions in civil actions in district courts. All such
depositions shall be taken upon commission issued by the director and shall be taken in
accordance with the laws and rules of court covering depositions in civil cases in the
district courts of this state.
8-1-121. Contempt - punishment - fees. (1) In case of failure or refusal of any
person to comply with an order of the director or subpoena issued by him or his agents, or
refusal of a witness to testify to any matter regarding which he may be lawfully
interrogated, or refusal to permit an inspection as provided in this article, the judge of the
district court for the county in which the person resides or of the county in which said
person has been ordered to appear and testify before said director, on application of the
director or any person appointed by him, shall compel obedience by attachment
proceedings as in the case of disobedience of the requirements of a subpoena issued from
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such district court or on a refusal to testify therein.
(2) Any person serving a subpoena or order shall receive the same fees as a sheriff
for like service. Such subpoena or order may be served by any officer duly authorized to
subpoena witnesses, or by any person designated by the director for such purpose, and
proof of the serving of such subpoena or order shall be by the return of such person or
officer endorsed thereon or attached thereto. Each witness who appears in answer to a
subpoena before the director or his agent, if so ordered by the director, shall receive for
his attendance the fees and mileage provided for in civil cases in the district court in the
county where such witness attends which shall be paid in the same manner as other
expenses of the division are paid.
(3) No witness subpoenaed at the instance of a party other than the director or his
agent shall be entitled to compensation unless the director in his discretion shall so order.
8-1-122. Inquiries - scope - report. (1) The director shall inquire into the general
condition of labor in the principal industries in the state of Colorado and especially in
those which are carried on in corporate forms; into existing relations between employers
and employees; into the effect of industrial conditions on public welfare and into the
rights and powers of the community to deal therewith; into the conditions of sanitation
and safety of employees and the provisions for protecting the life, limb, and health of the
employees; into relations existing between lessees of state lands and the state as to
production and royalties or rentals paid and the relations between said lessees and their
employees with respect to wages paid and conditions of labor; into the growth of
associations of employers and wage earners and the effect of such associations upon the
relations between employers and employees; into the extent and results of methods of
collective bargaining; into any methods which have been tried in any state or in foreign
countries for maintaining mutually satisfactory relations between employees and
employers; into methods of avoiding or adjusting labor disputes through peaceable and
conciliatory mediation and negotiations; and into the scope, methods, and resources of
existing bureaus of labor and possible ways of increasing their efficiency and usefulness.
(2) The director shall seek to discover the underlying causes of dissatisfaction in
the industrial situation, take all necessary means and methods within the powers of such
director as provided by law, to alleviate the same, and report such remedial legislation as
in the judgment of the director may be advisable, with his recommendations thereon.
Such report shall accompany the annual report required in section 8-1-107 (2) (j).
8-1-123. Arbitration. The director shall do all in his power to promote the
voluntary arbitration, mediation, and conciliation of disputes arising under an existing
written agreement between employers and employees and to avoid the necessity of
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resorting to strikes, lockouts, boycotts, blacklists, discriminations, and legal proceedings
in matters of employment. Arbitration undertaken pursuant to this section shall employ
the procedures provided in part 2 of article 22 of title 13, C.R.S.
8-1-124. Witnesses - rules of evidence. (Repealed)
8-1-125. Disputes - jurisdiction - request for intervention - penalty. (1) The
director may exercise jurisdiction over any dispute between employer and employee
affecting conditions of employment, or with respect to wages or hours, only when the
employer and the employee request such intervention or when the dispute, as determined
by the executive director, affects the public interest, and such jurisdiction shall continue
until after the final hearing of such dispute and the entry of the final award therein or until
said director shall enter an order disposing of or terminating such jurisdiction. The
relation of the employer and employee shall continue uninterrupted by the dispute or
anything arising out of the dispute until the final determination thereof by said director;
and neither the employer nor any employee affected by any such dispute shall alter the
conditions of employment with respect to wages or hours or any other condition of said
employment; neither shall they, on account of such dispute, do or be concerned in doing
directly or indirectly anything in the nature of a lockout or strike or suspension or
discontinuance of work or employment.
(2) A request for intervention shall be submitted to the director by both the
employer and the employee and shall set forth the facts, issues, or demands involved in
the controversy or dispute, and each party to such dispute shall furnish the director such
information within the time and as may be requested by the director.
(3) If either party uses this or any other provision of articles 1 to 18 of this title
and part 3 of article 34 of title 24, C.R.S., for the purpose of unjustly maintaining a given
condition of affairs through delay, such party is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not more than one hundred dollars.
(4) The director shall proceed with reasonable diligence in hearing all disputes
and shall render a final award or decision therein without unnecessary delay.
8-1-126. Lockouts and strikes unlawful - when. (1) It is unlawful for any
employee in the state personnel system or for any labor organization, through formal
action or through its agents, to incite, encourage, aid, or participate in a strike, stoppage
of work, slowdown, or interruption of operations by employees in the state personnel
system.
(2) It is unlawful for any employer to declare or cause a lockout, or for any
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employee to go on strike, on account of any dispute prior to or during an investigation,
hearing, or arbitration of such dispute by the director, or the board, under the provisions
of this article. Nothing in this article shall prohibit the suspension or discontinuance of
any industry or of the working of any persons therein for any cause not constituting a
lockout or strike, or to prohibit the suspension or discontinuance of any industry or of the
working of any person therein, which industry is not affected with a public interest.
Nothing in this article shall be held to restrain any employer from declaring a lockout, or
any employee, except an employee who is in the state personnel system, from going on
strike in respect to any dispute after the same has been duly investigated, heard, or
arbitrated, under the provisions of this article.
8-1-127. When findings or awards are binding. (Repealed)
8-1-128. Petition - writ - dissolution. The director of the division of labor, as
petitioner, may file in the district court of the city and county of Denver, or of any county
in which the place of employment or any part thereof is situated, a verified petition
against any employers, or employees, or both, as respondents, and setting forth any
violation or threatened or attempted violation of any provisions of section 8-1-125 or 8-1126, and, thereupon, without bond and without notice, such district court shall issue its
mandatory writ enjoining the alleged violations, or attempted or threatened violations of
this article, and ordering and requiring such respondents to maintain all the conditions of
employment in status quo and without change until after the dispute or controversy
between said employers and employees has been investigated and heard by said director
and the final findings, decision, order, or award of said director made and entered therein.
Any respondent may move such court to dissolve such mandatory writ as to such
respondent, and, upon at least five days' previous notice to the director, such motion shall
be set down for hearing, but such mandatory writ shall not be dissolved without proof of
full compliance by such respondent with all the provisions of this article and orders of the
director and that the continuance in effect of such mandatory writ is causing or will cause
such respondent great and irreparable injury. The court may require such security of said
respondent as the court determines adequate to enforce obedience to the provisions of this
article on the part of such respondent before such mandatory writ shall be dissolved.
8-1-129. Strikes and lockouts - penalties. (1) Any employer declaring or
causing a lockout contrary to the provisions of this article is guilty of a misdemeanor and,
upon conviction thereof, shall be punished by a fine of not more than one thousand
dollars, or by imprisonment in the county jail for a term of not more than six months, or
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by both such fine and imprisonment. Each day or part of a day that such lockout exists
shall constitute a separate offense under this section.
(2) Any employee who goes on strike contrary to the provisions of this article is
guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not
more than fifty dollars, or by imprisonment in the county jail for a term of not more than
six months, or by both such fine and imprisonment. Each day or part of a day that the
employee is on strike shall constitute a separate offense under this section.
(3) Any person who incites, encourages, or aids in any manner any employer to
declare or continue a lockout, or any employee to go or continue on strike contrary to the
provisions of this article, is guilty of a misdemeanor and, upon conviction thereof, shall
be punished by a fine of not more than one thousand dollars, or by imprisonment in the
county jail for a term of not more than six months, or by both such fine and
imprisonment.
8-1-130. Judicial review. The director has full power to hear and determine all
questions within his jurisdiction, and his findings, award, and order issued thereon shall
be final agency action. Any person affected by any finding, order, or award of the director
may seek judicial review as provided in section 24-4-106, C.R.S.
8-1-131. Review - notice - evidence - order. (Repealed)
8-1-132. Final findings and awards - interlocutory orders - modification.
(Repealed)
8-1-132.5.
(Repealed)
Fact-finding by commission - workmen's compensation.
8-1-133. Court to modify or vacate - venue. (Repealed)
8-1-134. Review - complaint - answer - hearing. (Repealed)
8-1-135.
(Repealed)
Cause referred back to director and commission - procedure.
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8-1-136. Setting aside order of director or commission. (Repealed)
8-1-137. Appellate review. (Repealed)
8-1-138. Fees - costs - counsel for director or commission. (Repealed)
8-1-139. Failure of witness to appear or testify - penalty. (1) Any person who
fails, refuses, or neglects to appear and testify, or to produce books, papers, and records as
required by the subpoena duly served upon him, or as ordered by the director, is guilty of
a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than
one hundred dollars or by imprisonment in the county jail for not more than thirty days for
each day or part of day that the person is in default.
(2) The district court of the county wherein such person resides or of the city and
county of Denver, or of the county wherein said person has been ordered to appear and
testify or to produce such books, papers, and records, upon application of the director or
his agent, may issue an order compelling the attendance and testimony of witnesses and
the production of books, papers, and records before such director or his agent.
8-1-140. Violation - penalty. (1) If an employer, employee, or any other person
violates any provision of this article, or does any act prohibited thereby, or fails or refuses
to perform any duty lawfully enjoined for which no penalty has been specifically
provided, such employer, employee, or any other person is guilty of a misdemeanor and,
upon conviction thereof, shall be punished by a fine of not less than one hundred dollars,
or by imprisonment in the county jail for not longer than sixty days, or by both such fine
and imprisonment for each such offense.
(2) If any employer, employee, or any other person fails, refuses, or neglects to
perform any duty lawfully enjoined within the time prescribed by the director or fails,
neglects, or refuses to obey any lawful order made by the director or any judgment or
decree made by any court as provided in this article, for each such violation, such
employer, employee, or any other person shall pay a penalty of not less than one hundred
dollars for each day such violation, failure, neglect, or refusal continues.
(3) In the case of a corporation, the violation of any of the provisions of this
article, including any violation fixed as a misdemeanor or other crime, is considered a
violation of the provisions of this article by all officers, agents, and representatives of said
corporation aiding, abetting, advising, encouraging, participating, inciting, or acquiescing
Colorado Revised Statutes 2013
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in such violation, and they are individually guilty of such violation and subject to the
fines, penalties, and punishments provided in this article.
8-1-141. Each day separate offense. Every day during which any employer or
officer or agent thereof or any employee fails to comply with any lawful order of the
director or to perform any duty imposed by this article constitutes a separate and distinct
violation thereof.
8-1-142. Collection of penalties. All penalties provided for in this article shall be
collected in a civil action brought against the employer or employee in the name of the
director. Any fine provided in this article is considered a penalty and recoverable in a
civil action as provided in this section unless the violation of this article, for the
punishment of which said fine is provided, is designated as a misdemeanor or other crime.
8-1-143. Costs - counsel for director - attorney general and district attorney
to enforce. (1) In proceedings to review any finding, order, or award, costs as between
the parties shall be allowed in the discretion of the court, but no costs may be taxed
against the director or the division.
(2) In any action for the review of any finding, order, or award and upon appellate
review thereof, it is the duty of the district attorney of the county wherein said action is
pending, or the attorney general if requested by the director, to appear on behalf of the
division, whether any other party defendants should have appeared or been represented in
the action or not. Upon request of the director, the attorney general or the district attorney
of any district or county shall institute and prosecute the necessary proceedings for the
enforcement of any of the provisions of this article, or for the recovery of any money due
the division, or any penalty provided for in this article, and shall defend in like manner all
suits, actions, or proceedings brought against the director. No district attorney or any
assistant or deputy district attorney, nor the attorney general or deputy or assistant
attorney general within this state, shall appear in any proceedings, hearing, investigation,
arbitration, award, or compensation matter, except as attorney for and on behalf of said
director and employees of the division.
8-1-144. Penalty for false statements. If, for the purpose of obtaining any order,
benefit, or award under the provisions of this article, either for himself or herself or for
any other person, anyone willfully makes a false statement or representation, he or she
commits a class 5 felony, as defined in section 18-1.3-401, C.R.S.
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8-1-145. Authority of department of public health and environment not
affected. Nothing in this article shall be construed to affect the authority of the
department of public health and environment relative to the public health.
8-1-146. Effect of transfer of powers, duties, and functions.
(1) Repealed.
(2) The division of labor, the division of employment and training, the division of
unemployment insurance, the state board of pharmacy, and the industrial claim appeals
panel in the industrial claim appeals office, which perform any of the powers, duties, and
functions performed by the industrial commission prior to its abolishment on July 1,
1986, are the successors in every way with respect to those powers, duties, and functions,
except as otherwise provided in this article or by law. Every act performed in the exercise
of those powers, duties, and functions has the same force and effect as if performed by
the commission prior to July 1, 1986. Whenever the commission is referred to or
designated by any law, contract, insurance policy, bond, or other document, the reference
or designation applies to the division of labor, the division of employment and training,
the division of unemployment insurance, the state board of pharmacy, or the industrial
claim appeals panel in the industrial claim appeals office, as the case may be.
8-1-147. Actions, suits, or proceedings not to abate by reorganization maintenance by or against successors. (Repealed)
8-1-148. Rules, regulations, rates, and orders adopted prior to article abolishment of commission - continued. (1) All rules, regulations, rates, orders, and
awards of the commission lawfully adopted prior to July 1, 1969, shall continue to be
effective until revised, amended, repealed, or nullified pursuant to law.
(2) All rules, regulations, rates, orders, and awards of the commission lawfully
adopted prior to July 1, 1986, shall continue to be effective until revised, amended,
repealed, or nullified pursuant to law.
8-1-149. Transfer of officers, employees, and property. (Repealed)
8-1-150. Licensing functions subject to periodic review. (Repealed)
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8-1-151. Public safety inspection fund created. There is hereby created in the
state treasury a fund, to be known as the public safety inspection fund, which shall consist
of moneys credited thereto pursuant to sections 8-20-104, 8-20-1002, and 9-7-108.5,
C.R.S. All moneys in the public safety inspection fund shall be subject to annual
appropriation by the general assembly for the public safety inspection activities of the
division of oil and public safety. The moneys in the public safety inspection fund shall not
be credited or transferred to the general fund or any other fund of the state.
8-1-152.
Applications for licenses - authority to suspend licenses rules. (1) Every application by an individual for a license issued by the department or
any authorized agent of the department shall require the applicant's name, address, and
social security number.
(2) The department or any authorized agent of the department shall deny, suspend,
or revoke any license pursuant to the provisions of section 26-13-126, C.R.S., and any
rules promulgated in furtherance thereof, if the department or agent thereof receives a
notice to deny, suspend, or revoke from the state child support enforcement agency
because the licensee or applicant is out of compliance with a court or administrative order
for current child support, child support debt, retroactive child support, child support
arrearages, or child support when combined with maintenance or because the licensee or
applicant has failed to comply with a properly issued subpoena or warrant relating to a
paternity or child support proceeding. Any such denial, suspension, or revocation shall be
in accordance with the procedures specified by rule of the department, rules promulgated
by the state board of human services, and any memorandum of understanding entered into
between the department or an authorized agent thereof and the state child support
enforcement agency for the implementation of this section and section 26-13-126, C.R.S.
(3) (a) The department shall enter into a memorandum of understanding with the
state child support enforcement agency, which memorandum shall identify the relative
responsibilities of the department and the state child support enforcement agency in the
department of human services with respect to the implementation of this section and
section 26-13-126, C.R.S.
(b) The appropriate rule-making body of the department is authorized to
promulgate rules to implement the provisions of this section.
(4) For purposes of this section, "license" means any recognition, authority, or
permission that the department or any authorized agent of the department is authorized by
law to issue for an individual to practice a profession or occupation or for an individual to
participate in any recreational activity. "License" may include, but is not necessarily
limited to, any license, certificate, certification, letter of authorization, or registration
issued for an individual to practice a profession or occupation or for an individual to
participate in any recreational activity.
Colorado Revised Statutes 2013
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Labor Relations
ARTICLE 2
Labor Relations, Generally
PART 1
GENERAL PROVISIONS
8-2-101. Combination of employees for peaceable objects lawful. It is not
unlawful for any two or more persons to unite, combine, or agree in any manner, to advise
or encourage, by peaceable means, any persons to enter into any combination in relation
to entering into or remaining in the employment of any person or corporation, or in
relation to the amount of wages or compensation to be paid for labor, or for the purpose
of regulating the hours of labor, or for the procuring of fair and just treatment from
employers, or for the purpose of aiding and protecting their welfare and interests in any
other manner not in violation of the constitution of this state or the laws made in
pursuance thereof. This section shall not be so construed as to permit two or more
persons, by threats of either bodily or financial injury, or by any display of force, to
prevent or intimidate any other person from continuing in such employment as he may see
fit, or to boycott or intimidate any employer of labor.
8-2-102. Coercion of employees unlawful. It is unlawful for any individual,
company, or corporation or any member of any firm, or an agent, officer, or employee of
any company or corporation to prevent employees from forming, joining, or belonging to
any lawful labor organization, union, society, or political party, or to coerce or attempt to
coerce employees by discharging or threatening to discharge them from their employ or
the employ of any firm, company, or corporation because of their connection with such
lawful labor organization, union, society, or political party.
8-2-103. Penalty for coercing employees. Any person or any member of any firm
or an agent, officer, or employee of any such company or corporation, violating the
provisions of section 8-2-102 is guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine of not less than one hundred dollars nor more than five
hundred dollars, or by imprisonment in the county jail for not less than six months nor
more than one year, or by both such fine and imprisonment.
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8-2-104. Obtaining workmen by misrepresentation unlawful. It is unlawful for
any person, company, corporation, society, association, or organization of any kind doing
business in this state, by itself or its agents or attorneys, to induce, influence, persuade, or
engage workmen to change from one place of employment to another in this state, or to
bring workmen of any class or calling into this state to work in any of the departments of
labor in this state, through or by means of false or deceptive representations, false
advertising, or false pretenses concerning the kind and character of the work to be done,
or amount and character of the compensation to be paid for such work, or the sanitary or
other conditions of the employment, or as to the existence or nonexistence of a strike or
lockout pending between employer and employees, or failure to state in any
advertisement, proposal, or contract for the employment that there is a strike, lockout, or
other labor trouble at the place of the proposed employment, when in fact such strike,
lockout, or other labor trouble then actually exists at such place, and it is deemed false
advertisement and misrepresentation for the purposes of sections 8-2-104 to 8-2-107.
8-2-105. Penalty. Any person, company, corporation, society, association, or
organization of any kind doing business in this state, as well as its agents, attorneys,
servants, or associates, found guilty of violating section 8-2-104 or any part thereof, is
guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not
more than two thousand dollars or by imprisonment in the county jail for not more than
one year, or by both such fine and imprisonment, where the defendants are natural
persons.
8-2-106. Armed guards - when lawful. Any person who hires, aids, abets, or
assists in hiring, through agencies or otherwise, persons to guard with arms or deadly
weapons of any kind other persons or property in this state, or any person who enters this
state armed with deadly weapons of any kind for any such purpose, without a permit in
writing from the governor of this state commits a class 6 felony and shall be punished as
provided in section 18-1.3-401, C.R.S. Nothing in sections 8-2-104 to 8-2-107 shall be
construed to interfere with the right of any person, company, corporation, society,
association, or organization to guard or protect its private property or private interests as
is now provided by law. Sections 8-2-104 to 8-2-107 shall be construed only to apply in
cases where workmen are brought into this state, or induced to go from one place to
another in this state by any false pretenses, false advertising, or deceptive representations,
or brought into this state under arms, or removed from one place to another in this state
under arms.
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8-2-107. Workman engaged by false representations to recover damages. Any
workman of this state, or any workman of another state who is influenced, induced, or
persuaded to engage with any persons mentioned in section 8-2-104, through or by means
of any of the things therein prohibited has a right of action for recovery of all damages
that each such workman has sustained in consequence of the false or deceptive
representations, false advertising, and false pretenses used to induce him to change his
place of employment against any person, corporation, company, or association, directly or
indirectly, causing such damages. In addition to all actual damages such workmen may
have sustained, they shall be entitled to recover such reasonable attorney fees as the court
shall fix, to be taxed as costs in any judgment recovered.
8-2-108. Unlawful for employer to prevent employees participating in
politics. (1) It is unlawful for any corporation, company, partnership, association,
individual, or any employer of labor, or for any agent thereof to make, adopt, or enforce
any rule, regulation, or policy forbidding or preventing any of his employees from
engaging or participating in politics or from becoming a candidate for public office or
being elected to and entering upon the duties of any public office. Any person violating
any of the provisions of this section is guilty of a misdemeanor and, upon conviction
thereof, shall be punished by a fine of not more than two thousand dollars, or by
imprisonment in the county jail for not more than one year, or by both such fine and
imprisonment.
(2) Nothing in this section shall be construed to prevent the injured employee
from recovering damages from his employer for injury suffered through a violation of this
section.
8-2-109. Rights of person charged with contempt. (1) In all cases where a
person is charged with indirect criminal contempt for violation of a protection order or
injunction issued by a court, the accused shall enjoy:
(a) The right as to admission to bail that is accorded to persons accused of crime;
(b) The right to be notified of the accusation and a reasonable time to make a
defense, if the alleged contempt is not committed in the immediate view or presence of
the court;
(c) Upon demand, the right to a speedy and public trial by an impartial jury of the
judicial district wherein the contempt has been committed. This requirement shall not be
construed to apply to contempts committed in the presence of the court or so near thereto
as to interfere directly with the administration of justice or to apply to the misbehavior,
misconduct, or disobedience of any officer of the court in respect to the writs, order, or
process of the court.
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(d) The right to file with the court a demand for the retirement of the judge sitting
in the proceeding, if the contempt arises from an attack upon the character or conduct of
such judge and if the attack occurred otherwise than in open court. Upon the filing of any
such demand, the judge shall proceed no further, but another judge shall be designated by
the presiding judge of said court. The demand shall be filed prior to the hearing in the
contempt proceeding.
8-2-110. Unlawful to publish blacklist. No corporation, company, or individual
shall blacklist, or publish, or cause to be blacklisted or published any employee,
mechanic, or laborer discharged by such corporation, company, or individual, with the
intent and for the purpose of preventing such employee, mechanic, or laborer from
engaging in or securing similar or other employment from any other corporation,
company, or individual.
8-2-111. Penalty for blacklisting. If any officer or agent of any corporation,
company, individual, or other person blacklists, publishes, or causes to be blacklisted or
published any employee, mechanic, or laborer discharged by such corporation, company,
or individual with the intent and for the purpose of preventing such employee, mechanic,
or laborer from engaging in or securing similar or other employment from any other
corporation, company, or individual, or in any manner conspires or contrives by
correspondence, or otherwise, to prevent such discharged employee from securing
employment, is guilty of a misdemeanor and, upon conviction thereof, shall be punished
by a fine of not less than fifty dollars nor more than two hundred fifty dollars, or by
imprisonment in the county jail for not less than thirty days nor more than ninety days, or
by both such fine and imprisonment.
8-2-111.5.
Certain employment references - exception to blacklisting
prohibition. (1) The general assembly hereby finds, determines, and declares that the
intent and purpose of the provisions of sections 8-2-110 and 8-2-111 which prohibit the
maintenance or use of blacklists were enacted to protect employees from retribution and
harassment in the pursuit of their lawful activities. The general assembly further finds,
determines, and declares that these prohibitions against blacklisting have in some
instances been abused and have been used as a shield for persons responsible for thefts
and other misappropriations of funds from financial institutions regulated under title 11,
C.R.S., or under federal law in securing employment from other such financial
institutions. These abuses of the antiblacklisting provisions have resulted in pattern and
serial criminal activities at great expense and harm to such financial institutions and their
Colorado Revised Statutes 2013
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customers.
(2) In response to a request by another bank, savings and loan association, credit
card or travel and entertainment card company, trust company, credit union, or other state
or federally chartered lending institution operating in Colorado, it is not unlawful or a
violation of the prohibitions against blacklisting specified in sections 8-2-110 and 8-2-111
for a bank, savings and loan association, credit card or travel and entertainment card
company, trust company, credit union, or other state or federally chartered lending
institution operating in Colorado, when acting in good faith, to disclose any information
about any involvement in a theft, embezzlement, misappropriation, or other defalcation by
an employee or former employee.
(3) No bank, savings and loan association, credit card or travel and entertainment
card company, trust company, credit union, or other state or federally chartered lending
institution operating in Colorado or any officer, director, or employee thereof is civilly
liable for providing an employment reference described in subsection (2) of this section
upon request if the information is provided in good faith.
(4) The provision of such employment information shall not constitute a violation
of the prohibition against blacklisting as provided in sections 8-2-110 and 8-2-111, nor
shall it constitute an unfair labor practice in violation of any provision of article 3 of this
title.
(5) A bank, savings and loan association, credit card or travel and entertainment
card company, trust company, credit union, or other state or federally chartered lending
institution operating in Colorado or any officer, director, or employee thereof who
discloses information under this section is presumed to be acting in good faith unless it is
shown by a preponderance of the evidence that the institution, officer, director, or
employee intentionally or recklessly disclosed false information about the employee or
former employee.
8-2-111.6.
Health care employers - immunity from civil liability requirements - exception to blacklisting prohibition - legislative declaration. (1) The
general assembly hereby finds, determines, and declares that the intent and purpose of
sections 8-2-110 and 8-2-111, which prohibit the maintenance or use of blacklists, is to
protect employees from retribution and harassment in the pursuit of their lawful activities.
The general assembly further finds, determines, and declares that, in the area of health
care, these prohibitions against blacklisting have in some instances been abused and have
been used as a shield by persons responsible for drug violations or for patient
endangerment.
(2) In response to a request by a prospective or current employer of a health care
worker, it is neither unlawful nor a violation of the prohibitions against blacklisting
specified in sections 8-2-110 and 8-2-111 for an employer, when acting in good faith, to
Colorado Revised Statutes 2013
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disclose information known about any involvement in drug diversion, drug tampering,
patient abuse, violation of drug or alcohol policies of the employer, or crimes of violence
as listed in section 18-1.3-406 (2) (a), C.R.S., by the health care worker who is an
employee or a former employee of the responding employer.
(3) (a) (I) An employer who provides information in accordance with subsection
(2) of this section is immune from civil liability for providing the information or for any
consequences that result from the disclosure of the information unless the health care
worker shows by a preponderance of the evidence that the information is false and the
employer providing the information knew or reasonably should have known that the
information is false.
(II) The provision of employment information in accordance with subsection (2)
of this section does not constitute blacklisting under section 8-2-110 or 8-2-111, nor does
it constitute an unfair labor practice in violation of article 3 of this title.
(b) This subsection (3) applies to any employee, agent, or other representative of
the responding employer who is authorized to provide and provides information to an
employer in accordance with subsection (2) of this section.
(4) An employer or any officer, director, employee, or representative of the
employer who discloses information under this section shall be presumed to be acting in
good faith unless it is shown by a preponderance of the evidence that the facility, officer,
director, employee, or representative of the employer intentionally or recklessly disclosed
false information about the employee or former employee.
(5) For the purposes of this section, "health care worker" means any person
registered, certified, or licensed pursuant to articles 29.5 to 43.2 of title 12, C.R.S., or
article 3.5 of title 25, C.R.S., or any person who interacts directly with a patient or assists
with the patient care process, who is currently employed by, or is a prospective employee
of, the employer making the inquiry.
8-2-111.7.
Employees working with persons with intellectual and
developmental disabilities - immunity from civil liability - requirements - exception
to blacklisting prohibition - legislative declaration - definitions. (1) The general
assembly hereby finds, determines, and declares that the intent and purpose of sections 82-110 and 8-2-111, which prohibit the maintenance or use of blacklists, is to protect
employees from retribution and harassment in the pursuit of their lawful activities. The
general assembly further finds, determines, and declares that these prohibitions against
blacklisting have in some instances been abused and have been used as a shield by
caregivers responsible for mistreatment, exploitation, neglect, or abuse of persons with
developmental disabilities.
(2) In response to a request by a current or prospective employer of a caregiver, it
is neither unlawful nor a violation of the prohibitions against blacklisting specified in
Colorado Revised Statutes 2013
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sections 8-2-110 and 8-2-111 for an employer, when acting in good faith, to disclose
information known about any involvement in the mistreatment, exploitation, neglect, or
abuse of persons with developmental disabilities as prohibited by section 27-10.5-115,
C.R.S., by a caregiver.
Editor's note: This version of subsection (2) is effective until March 1, 2014.
(2) In response to a request by a current or prospective employer of a caregiver, it
is neither unlawful nor a violation of the prohibitions against blacklisting specified in
sections 8-2-110 and 8-2-111 for an employer, when acting in good faith, to disclose
information known about any involvement in the mistreatment, exploitation, neglect, or
abuse of persons with intellectual and developmental disabilities as prohibited by section
25.5-10-221, C.R.S., by a caregiver.
Editor's note: This version of subsection (2) is effective March 1, 2014.
(3) (a) (I) An employer who provides information in accordance with subsection
(2) of this section is immune from civil liability for providing the information or for any
consequences that result from the disclosure of the information unless the caregiver
shows by a preponderance of the evidence that the information is false and the employer
providing the information knew or reasonably should have known that the information is
false.
(II) The provision of employment information in accordance with subsection (2)
of this section does not constitute blacklisting under section 8-2-110 or 8-2-111, nor does
it constitute an unfair labor practice in violation of article 3 of this title.
(b) This subsection (3) applies to any employee, agent, or other representative of
the responding employer who is authorized to provide and provides information to a
current or prospective employer in accordance with subsection (2) of this section.
(4) An employer or any officer, director, employee, or representative of the
employer who discloses information under this section is presumed to be acting in good
faith unless it is shown by a preponderance of the evidence that the facility, officer,
director, employee, or representative of the employer intentionally or recklessly disclosed
false information about the caregiver.
(5) For the purposes of this section:
(a) "Caregiver" means an individual currently or formerly employed to work with
a person with a developmental disability or a person who provides host home services by
contract as part of residential services and supports as described in section 27-10.5-104
(1) (f), C.R.S. "Caregiver" does not mean a person who is employed by or who has
contracted to work with a school district.
Editor's note: This version of paragraph (a) is effective until March 1, 2014.
Colorado Revised Statutes 2013
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(a) "Caregiver" means a person currently or formerly employed to work with a
person with an intellectual and developmental disability or a person who provides host
home services by contract as part of residential services and supports as described in
section 25.5-10-206 (1) (e), C.R.S. "Caregiver" does not mean a person who is employed
by or who has contracted to work with a school district.
Editor's note: This version of paragraph (a) is effective March 1, 2014.
(b) "Person with a developmental disability" has the same meaning as defined in
section 27-10.5-102 (11) (b), C.R.S.
Editor's note: This version of paragraph (b) is effective until March 1, 2014.
(b) "Person with an intellectual and developmental disability" has the same
meaning as defined in section 25.5-10-202, C.R.S.
Editor's note: This version of paragraph (b) is effective March 1, 2014.
8-2-112. Unlawful to publish notice of boycott. It is unlawful to print or
circulate any notice of boycott, boycott card, sticker, banner, sign, or dodger publishing or
declaring that a boycott or ban exists, or has existed or is contemplated against any
person, firm, or corporation doing a lawful business, or publish the name of any judicial
officer or other public officer upon any notice of boycott, boycott card, sticker, banner,
sign, or other similar list because of any lawful act or decision of such official.
8-2-113. Unlawful to intimidate worker - agreement not to compete. (1) It
shall be unlawful to use force, threats, or other means of intimidation to prevent any
person from engaging in any lawful occupation at any place he sees fit.
(2) Any covenant not to compete which restricts the right of any person to receive
compensation for performance of skilled or unskilled labor for any employer shall be
void, but this subsection (2) shall not apply to:
(a) Any contract for the purchase and sale of a business or the assets of a business;
(b) Any contract for the protection of trade secrets;
(c) Any contractual provision providing for recovery of the expense of educating
and training an employee who has served an employer for a period of less than two years;
(d) Executive and management personnel and officers and employees who
Colorado Revised Statutes 2013
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constitute professional staff to executive and management personnel.
(3) Any covenant not to compete provision of an employment, partnership, or
corporate agreement between physicians which restricts the right of a physician to
practice medicine, as defined in section 12-36-106, C.R.S., upon termination of such
agreement, shall be void; except that all other provisions of such an agreement
enforceable at law, including provisions which require the payment of damages in an
amount that is reasonably related to the injury suffered by reason of termination of the
agreement, shall be enforceable. Provisions which require the payment of damages upon
termination of the agreement may include, but not be limited to, damages related to
competition.
8-2-114. Immunity from civil liability for employer disclosing information employer shall not maintain blacklist - credit lists excepted. (1) For purposes of this
section, "job performance" means:
(a) The suitability of the employee for reemployment;
(b) The employee's work-related skills, abilities, and habits as they may relate to
suitability for future employment; and
(c) In the case of a former employee, the reason for the employee's separation.
(2) It is unlawful for any employer to maintain a blacklist, or to notify any other
employer that any current or former employee has been blacklisted by such employer, for
the purpose of preventing such employee from receiving employment. Sections 8-2-112
to 8-2-115 shall not be construed to prevent any merchant or professional person, or any
association thereof, from maintaining or publishing a list concerning the credit or
financial responsibility of any person dealing with them on credit.
(3) Any employer who provides information about a current or former employee's
job history or job performance to a prospective employer of the current or former
employee upon request of the prospective employer or the current or former employee is
immune from civil liability and is not liable in civil damages for the disclosure or any
consequences of the disclosure. This immunity shall not apply when such employee
shows by a preponderance of the evidence both of the following:
(a) The information disclosed by the current or former employer was false; and
(b) The employer providing the information knew or reasonably should have
known that the information was false.
(4) This section applies to any employee, agent, or other representative of the
current or former employer who is authorized to provide and who provides information in
accordance with this section.
(5) Any employer that provides written information to a prospective employer
about a current or a former employee shall send, upon the request of such current or
former employee, a copy of the information provided to the last-known address of the
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person who is the subject of the reference. Any person who is the subject of such a
reference may obtain a copy of the reference information by appearing at the employer's
or former employer's place of business during normal business hours. The employer or
former employer may charge a fair and reasonable amount for reproduction costs if
multiple copies are requested.
(6) Nothing in this section shall be construed to abrogate or contradict the
provisions of part 4 of article 34 of title 24, C.R.S.
8-2-115. Violation of sections - misdemeanor. Any person, firm, or corporation
violating any provisions of sections 8-2-112 to 8-2-115 is guilty of a misdemeanor and,
upon conviction thereof, shall be punished by a fine of not less than ten dollars nor more
than two hundred fifty dollars, or by imprisonment in the county jail for not more than
sixty days, or by both such fine and imprisonment.
8-2-116. Age of employee not ground for discharge. (Repealed)
8-2-117. Penalty for violation. (Repealed)
8-2-118. Cost of medical examination - employer and employee defined. (1) It
is unlawful for any employer, as defined in subsection (2) of this section, to require any
employee or applicant for employment to pay the cost of a medical examination or the
cost of furnishing any records required by the employer as a condition of employment,
except those records necessary to support the applicant's statements in the application for
employment.
(2) "Employer", as used in this section, means an individual, a partnership, an
association, a corporation, a legal representative, trustee, receiver, trustee in bankruptcy,
and any common carrier by rail, motor, water, air, or express company doing business in
or operating within the state.
(3) "Employee", as used in this section, means every person who may be
permitted, required, or directed by any employer, as defined in subsection (2) of this
section, in consideration of direct or indirect gain or profit, to engage in any employment.
(4) Any employer who violates the provisions of this section is liable to a penalty
of not more than one hundred dollars for each violation. It is the duty of the director of
the division of labor to enforce this section.
(5) (a) The director of the division of labor shall enforce this section as it applies
to an individual, a partnership, an association, a corporation, a legal representative,
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trustee, receiver, or trustee in bankruptcy doing business in or operating within the state.
(b) The public utilities commission shall enforce this section as it applies to any
common carrier by rail, motor, water, air, or express company doing business in or
operating within the state.
(c) Nothing in this subsection (5) shall be construed as applying to irrigation ditch
and water companies.
8-2-119.
Awards of back pay - deduction of unemployment
compensation. (1) In any proceeding in this state in which an award of back pay is
made, the employer shall pay any such award in full, subject to the provisions of
subsection (3) of this section.
(2) The person ordering an award of back pay shall notify the director of the
division of unemployment insurance of the award within five days after the date of the
order.
(3) If, during the period for which back pay is awarded, the recipient of the award
has been receiving unemployment benefits pursuant to the provisions of articles 70 to 82
of this title, the entity ordering the award shall reduce the amount of the award by the
amount of benefits the person received, and the employer shall withhold that amount from
the award. The employer shall remit the amount withheld from the back pay award to the
division of unemployment insurance, and the division shall credit the amount to the
unemployment compensation fund. The employer shall remit the withheld amount within
ten days after the award of back pay becomes final.
8-2-120. Residency requirements prohibited for public employment legislative declaration - definitions. (1) The general assembly hereby finds, determines,
and declares that the imposition of residency requirements by public employers works to
the detriment of the public health, welfare, and morale as well as to the detriment of the
economic well-being of the state. The general assembly further finds, determines, and
declares that the right of the individual to work in or for any local government is a matter
of statewide concern and accordingly the provisions of this section preempt any
provisions of any such local government to the contrary. The general assembly declares
that the problem and hardships to the citizens of this state occasioned by the imposition of
employee residency requirements far outweigh any gain devolving to the public employer
from the imposition of said requirements.
(2) As used in this section, unless the context otherwise requires:
(a) "Employee" means any person who works for a salary or for hourly wages,
whether full-time or part-time and whether temporary or permanent. Such term does not
include a local government's elected officials or its key appointed officials such as cabinet
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members, director of public safety, superintendent of schools, fire chief, or police chief
and does not include members of a local government's boards or committees if residency
requirements are set forth by any ordinance, charter, resolution, or statute of the local
government.
(b) "Local government" means a county, city and county, city, municipality, town,
school district, junior college district, a local improvement and service district, special
district, or any other independent local entity having the authority under the general laws
of this state to levy taxes or impose assessments.
(3) On and after July 1, 1988, any employee of any local government may at his
sole option reside and dwell anywhere such employee chooses, whether within or without
the territorial boundaries of the local government, except as provided in paragraph (b) of
subsection (4) of this section.
(4) (a) On and after July 1, 1988, no residency requirement may be imposed on
any employee by any local government. To the extent that any local government
ordinance, charter, resolution, or statute conflicts with this provision, it is hereby
preempted by this provision.
(b) Key employees with duties which clearly and demonstrably require them to be
close to their place of employment may be subject to reasonable requirements as to the
maximum distance the employee's residence may be from the place of work. Such
condition may be imposed, after hearing, by ordinance or resolution.
8-2-121. Document fraud - penalties. (Repealed)
8-2-122. Employment verification requirements - audits - fine for fraudulent
documents - cash fund created - definitions. (1) As used in this section, unless the
context otherwise requires:
(a) "Director" means the director of the division.
(b) "Division" means the division of labor in the department of labor and
employment.
(c) "Employer" means a person or entity that:
(I) Transacts business in Colorado;
(II) At any time, employs another person to perform services of any nature; and
(III) Has control of the payment of wages for such services or is the officer, agent,
or employee of the person or entity having control of the payment of wages.
(d) "Unauthorized alien" has the same meaning as set forth in 8 U.S.C. sec. 1324a
(h) (3).
(2) On and after January 1, 2007, within twenty days after hiring a new employee,
each employer in Colorado shall affirm that the employer has examined the legal work
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status of such newly hired employee and has retained file copies of the documents
required by 8 U.S.C. sec. 1324a; that the employer has not altered or falsified the
employee's identification documents; and that the employer has not knowingly hired an
unauthorized alien. The employer shall keep a written or electronic copy of the
affirmation, and of the documents required by 8 U.S.C. sec. 1324a, for the term of
employment of each employee.
(3) Upon the request of the director, an employer shall submit documentation to
the director that demonstrates that the employer is in compliance with the employment
verification requirements specified in 8 U.S.C. sec. 1324a (b) and documentation that the
employer has complied with the requirements of subsection (2) of this section. The
director or the director's designee may conduct random audits of employers in Colorado
to obtain the documentation. When the director has reason to believe that an employer has
not complied with the employment verification and examination requirements, the
director shall request the employer to submit the documentation.
(4) An employer who, with reckless disregard, fails to submit the documentation
required by this section, or who, with reckless disregard, submits false or fraudulent
documentation, shall be subject to a fine of not more than five thousand dollars for the
first offense and not more than twenty-five thousand dollars for the second and any
subsequent offense. The moneys collected pursuant to this subsection (4) shall be
deposited in the employment verification cash fund, which is hereby created in the state
treasury. The moneys in the fund shall be appropriated to the department of labor and
employment for the purpose of implementing, administering, and enforcing this section.
The moneys in the fund shall remain in the fund and not revert to the general fund or any
other fund at the end of any fiscal year.
(5) It is the public policy of Colorado that this section shall be enforced without
regard to race, religion, gender, ethnicity, national origin, or disability.
8-2-123. Health care workers - retaliation prohibited - definitions. (1) As
used in this section:
(a) "Disciplinary action" means any direct or indirect form of discipline or
penalty, including, but not limited to, dismissal, demotion, transfer, reassignment,
suspension, corrective action, reprimand, admonishment, unsatisfactory or belowstandard performance evaluation, reduction in force, withholding of work, changes in
work hours, negative reference, creating or tolerating a hostile work environment, or the
threat of any such discipline or penalty. "Disciplinary action" shall not include action
taken that is related to staffing or patient care needs.
(b) "Good faith report or disclosure" means a report regarding patient safety
information or quality of patient care that is made without malice or consideration of
personal benefit and that the health care worker making the report has reasonable cause to
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believe is true. "Good faith report or disclosure" also includes, with respect to patient
care, a report regarding any practice, procedure, action, or failure to act with regard to
patient safety that concerns information regarding a generally accepted standard of care; a
law, rule, regulation, or declaratory ruling adopted pursuant to law; or compliance with a
professional licensure requirement, which report is made without malice or consideration
of personal benefit and that the health care worker making the report has reasonable cause
to believe is true.
(c) "Health care provider" means any health care facility licensed under section
25-3-101, C.R.S., or any individual who is authorized to practice some component of the
healing arts by license, certificate, or registration.
(d) "Health care worker" means any person certified, registered, or licensed
pursuant to article 22, 29.5, 32, 33, 35, 36, or 37, or 38 to 43 of title 12, C.R.S., or
certified pursuant to section 25-3.5-203, C.R.S.
(2) (a) A health care provider shall not take disciplinary action against a health
care worker in retaliation for making a good faith report or disclosure.
(b) Paragraph (a) of this subsection (2) shall not apply to a health care worker who
discloses information that the worker knows to be false, who discloses information with
disregard for the truth or falsity thereof, or who discloses information without fully
complying with subsection (3) of this section.
(c) Nothing in this section shall be construed to grant immunity to a health care
worker for his or her own acts of medical negligence, for unprofessional conduct subject
to professional review activities authorized by state or federal law, for a breach of a
professional licensure requirement, or for a violation of any state or federal law requiring
confidentiality of patient information.
(3) When making a good faith report or disclosure regarding patient safety or
quality of patient care, a health care worker shall follow the internal reporting procedures
of the health care provider, to the extent such procedures exist and are provided to the
health care worker in writing, and shall exhaust such procedures prior to pursuing any
further reporting or disclosure activity.
(4) Nothing in this section shall prevent a health care provider from taking
disciplinary action against a health care worker for reasons other than those specified in
subsection (2) of this section.
(5) Nothing in this section shall be construed to preempt existing laws,
regulations, or rules pertaining to patient care, including professional review proceedings
for health professionals or for physicians pursuant to part 1 of article 36.5 of title 12,
C.R.S., or quality and safety standards for a health care facility licensed pursuant to
section 25-3-101, C.R.S.
8-2-124. Electronic verification program - availability - notice to employers Colorado Revised Statutes 2013
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definitions. (1) As used in this section:
(a) "Department" means the department of labor and employment.
(b) "Electronic verification program" or "e-verify program" means the electronic
employment verification program that is authorized in 8 U.S.C. sec. 1324a and jointly
administered by the United States department of homeland security and the social security
administration, or its successor program.
(c) "Employer" means a person transacting business in Colorado who, at any time,
employs another person to perform services of any nature and who has control of the
payment of wages for such services or is the officer, agent, or employee of the person
having control of the payment of wages.
(d) "Employment eligibility verification form I-9" means the form developed by
the United States citizenship and immigration services in the department of homeland
security pursuant to 8 U.S.C. sec. 1324a (b).
(e) "Unauthorized alien" has the same meaning as set forth in 8 U.S.C. sec. 1324a
(h) (3).
(2) (a) (I) As part of its quarterly electronic publication distributed to employers,
the department shall, at a minimum, notify every employer of the federal law against
hiring or continuing to employ an unauthorized alien and of the availability of the
optional electronic verification program to verify the work eligibility status of new
employees.
(II) (A) In notifying employers of the e-verify program pursuant to subparagraph
(I) of this paragraph (a), the department shall include language similar to the following:
As with all current employee verification programs, the e-verify
program is not one hundred percent accurate, and an employee has recourse
available if the employee is legally documented to work in the United States
but the employer receives a final notice of nonconfirmation of work
eligibility regarding the employee through the e-verify program.
(B) Additionally, the department shall provide employers information about when,
during the hiring process, an employer may lawfully use the e-verify program, specifying
that the e-verify program can only be used after an employee is hired and cannot be used
to verify the work eligibility status of existing employees. The notice shall also restate the
requirements of section 24-34-402, C.R.S., which prohibits employers from engaging in
discriminatory or unfair employment practices.
(III) Immediately following the notice required by subparagraph (I) of this
paragraph (a), the department shall include in the quarterly electronic publication a link to
the portion of the department's web site where an employer can access additional
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information about the federal law, the e-verify program and the requirements for
participation in the e-verify program, and the following statement, in bold-faced type in a
conspicuous location:
It is unlawful for an employer to:
Hire, recruit, or refer for a fee, for employment in the United
States, an alien, knowing the alien is an unauthorized alien;
Hire, recruit, or refer for a fee, for employment in the United
States, an individual without verifying the employment eligibility status
of the individual through completion of the Employment Eligibility
Verification Form I-9, or its successor form;
Continue to employ an alien in the United States, knowing that
the alien is or has become an unauthorized alien; or
While using the e-verify program, refuse to hire, discharge,
promote, or demote a person, harass a person during the course of
employment, or discriminate against a person in matters of
compensation, on the basis of the person's disability, race, creed, color,
sex, sexual orientation, religion, age, national origin, or ancestry,
pursuant to section 24-34-402, C.R.S.
For more specific information regarding the e-verify program
and its requirements and use, employers should consult 8 U.S.C. sec.
1324a.
(IV) The department shall include the notice and web site link required by this
paragraph (a) in each quarterly electronic publication distributed to employers on and
after August 5, 2008.
(b) The department shall permanently post on its web site the statement and
information described in subparagraph (III) of paragraph (a) of this subsection (2), as well
as a link to the e-verify web site available through the internet portal for the United States
citizenship and immigration services, or its successor agency.
8-2-125.
Identification of workers engaged in off-site work - permissible
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forms of identification - exceptions - definitions. (1) (a) When an employer dispatches
an employee to an off-site premises to perform work on behalf of the employer for a
customer located at the off-site premises, the employee may provide an employer-issued
identification card to the custodian of the off-site premises in lieu of a government-issued
identification card for purposes of verifying the identity of the employee. Except as
provided in paragraph (c) of this subsection (1), the custodian of the off-site premises
shall not require the employee to surrender his or her government-issued identification
card to the custodian or retain the employee's government-issued identification card while
the employee is physically present on the off-site premises engaged in the performance of
work on behalf of the employer.
(b) If the employee has an employer-issued identification card, the custodian may
require the employee to surrender his or her employer-issued identification card for
purposes of verifying the employee's identity, and the custodian may hold the employerissued identification card at all times while the employee is present on the off-site
premises.
(c) Notwithstanding the prohibition in paragraph (a) of this subsection (1), if the
employee does not surrender an employer-issued identification card, the custodian may
require the employee to surrender the employee's government-issued identification card to
verify the employee's identity, and the custodian may hold the government-issued
identification card at all times while the employee is present on the off-site premises.
(d) If the employee provides his or her employer-issued identification card to the
custodian pursuant to paragraph (b) of this subsection (1), the custodian may require the
employee to allow the custodian to examine a secondary form of identification containing
the employee's photograph, including a government-issued identification card.
(2) This section does not apply to a person who enters into a defense contract with
the federal government pursuant to the national industrial security program, or its
successor program, under which the person is contractually obligated to verify
identification using a government-issued identification card.
(3) As used in this section, unless the context otherwise requires:
(a) "Custodian" means the person who is authorized to provide or restrict access to
the off-site premises, including security personnel for a commercial building or multiresidential property.
(b) "Employer-issued identification card" means an identification card issued by
an employer to an employee that contains, at a minimum, the name of the employer and
the employee's name and photograph.
(c) "Government-issued identification card" means a state-issued driver's license
or identification card containing the person's photograph, an identification card or
passport issued by the federal government containing the person's photograph, a native
American tribal document identifying the person and containing the person's photograph,
or any other form of identification issued by the federal or a state government that
Colorado Revised Statutes 2013
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contains the person's photograph and identifying information.
(d) "Off-site premises" means a building or property that is not owned, leased,
operated, or otherwise under the control of the employer of the employee who is
dispatched to the premises, including:
(I) A commercial building, other than a federal, state, or local government
building; or
(II) A multi-residential property.
8-2-126. Employer use of consumer credit information - violation - short title
- definitions. (1) This section shall be known and may be cited as the "Employment
Opportunity Act".
(2) As used in this section:
(a) "Adverse action" means:
(I) For an applicant for employment, denial of employment; and
(II) For an employee, demotion, reassignment to a lower-ranked position or to a
position with a lower level of compensation, decrease in compensation level, denial of
promotion, or termination of employment; or
(III) Any other decision for employment purposes that adversely affects an
employee or applicant.
(b) "Consumer credit information" means a written, oral, or other communication
of information bearing on a consumer's creditworthiness, credit standing, credit capacity,
or credit history. "Consumer credit information" includes a credit score but does not
include the address, name, or date of birth of an employee associated with a social
security number.
(c) "Credit score" means an attempted numerical quantification of a person's
creditworthiness or credit history.
(d) "Employee" means every person who may be permitted, required, or directed
by any employer in consideration of direct or indirect gain or profit, to engage in any
employment and includes an applicant for employment.
(e) "Employer" has the meaning set forth in section 8-1-101 and includes a
prospective employer; except that "employer" does not include any state or local law
enforcement agency.
(f) "Employment purposes" means evaluating a person for employment, hiring,
promotion, demotion, reassignment, adjustment in compensation level, or retention as an
employee.
(g) "Substantially related to the employee's current or potential job" means the
information contained in a credit report is related to the position for which the employee
who is the subject of the report is being evaluated because the position:
(I) Constitutes executive or management personnel or officers or employees who
Colorado Revised Statutes 2013
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constitute professional staff to executive and management personnel, and the position
involves one or more of the following:
(A) Setting the direction or control of a business, division, unit, or an agency of a
business;
(B) A fiduciary responsibility to the employer;
(C) Access to customers', employees', or the employer's personal or financial
information other than information customarily provided in a retail transaction; or
(D) The authority to issue payments, collect debts, or enter into contracts; or
(II) Involves contracts with defense, intelligence, national security, or space
agencies of the federal government.
(3) (a) An employer shall not use consumer credit information for employment
purposes unless the information is substantially related to the employee's current or
potential job. An employer or employer's agent, representative, or designee shall not
require an employee to consent to a request for a credit report that contains information
about the employee's credit score, credit account balances, payment history, savings or
checking account balances, or savings or checking account numbers as a condition of
employment unless:
(I) The employer is a bank or financial institution;
(II) The report is required by law; or
(III) The report is substantially related to the employee's current or potential job
and the employer has a bona fide purpose for requesting or using information in the credit
report that is substantially related to the employee's current or potential job and is
disclosed in writing to the employee.
(b) When consumer credit information is substantially related to the employee's
current or potential job, an employer may inquire further of the employee to give him or
her the opportunity to explain any unusual or mitigating circumstances where the
consumer credit information may not reflect money management skills but is rather
attributable to some other factor, including a layoff, error in the credit information, act of
identity theft, medical expense, military separation, death, divorce, or separation in the
employee's family, student debt, or a lack of credit history.
(4) If an employer relies, in whole or in part, on consumer credit information to
take adverse action regarding the employee whose information was obtained, the
employer shall disclose that fact, and the particular information upon which the employer
relies, to the employee. The employer shall make the disclosure required under this
subsection (4) to an employee in writing or to an applicant using the same medium in
which the application was made.
(5) A person who is injured by a violation of this section may file a complaint
with the division of labor, upon which the division of labor shall promptly investigate and
issue findings within thirty days after a hearing and may award civil penalties not to
exceed two thousand five hundred dollars to a prevailing party in an action brought under
Colorado Revised Statutes 2013
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this subsection (5).
(6) The director of the division of labor in the department of labor and
employment shall enforce this section.
(7) Nothing in this section imposes any liability on a person, including a consumer
reporting agency, as that term is defined in section 12-14.3-102 (4), C.R.S., for providing
an employer with consumer credit information.
8-2-127. Prohibitions of employer - requiring access to personal electronic
communication devices - definitions - rules. (1) As used in this section:
(a) "Applicant" means an applicant for employment.
(b) "Electronic communications device" means a device that uses electronic
signals to create, transmit, and receive information, including computers, telephones,
personal digital assistants, and other similar devices.
(c) "Employer" means a person engaged in a business, industry, profession, trade,
or other enterprise in the state or a unit of state or local government. "Employer" includes
an agent, a representative, or a designee of the employer. "Employer" does not include the
department of corrections, county corrections departments, or any state or local law
enforcement agency.
(2) (a) An employer may not suggest, request, or require that an employee or
applicant disclose, or cause an employee or applicant to disclose, any user name,
password, or other means for accessing the employee's or applicant's personal account or
service through the employee's or applicant's personal electronic communications device.
An employer shall not compel an employee or applicant to add anyone, including the
employer or his or her agent, to the employee's or applicant's list of contacts associated
with a social media account or require, request, suggest, or cause an employee or
applicant to change privacy settings associated with a social networking account.
(b) Paragraph (a) of this subsection (2) does not prohibit an employer from
requiring an employee to disclose any user name, password, or other means for accessing
nonpersonal accounts or services that provide access to the employer's internal computer
or information systems.
(3) An employer shall not:
(a) Discharge, discipline, or otherwise penalize or threaten to discharge,
discipline, or otherwise penalize an employee for an employee's refusal to disclose any
information specified in paragraph (a) of subsection (2) of this section or refusal to add
the employer to the list of the employee's contacts or to change the privacy settings
associated with a social media account; or
(b) Fail or refuse to hire an applicant because the applicant refuses to disclose any
information specified in paragraph (a) of subsection (2) of this section or refuses to add
the employer to the applicant's list of contacts or to change the privacy settings associated
with a social media account.
Colorado Revised Statutes 2013
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(4) This section does not prevent an employer from:
(a) Conducting an investigation to ensure compliance with applicable securities or
financial law or regulatory requirements based on the receipt of information about the use
of a personal web site, internet web site, web-based account, or similar account by an
employee for business purposes; or
(b) Investigating an employee's electronic communications based on the receipt of
information about the unauthorized downloading of an employer's proprietary information
or financial data to a personal web site, internet web site, web-based account, or similar
account by an employee.
(5) A person who is injured by a violation of this section may file a complaint
with the department of labor and employment. The department shall investigate the
complaint and issue findings thirty days after a hearing. The department may promulgate
rules regarding penalties that include a fine of up to one thousand dollars for the first
offense and a fine not to exceed five thousand dollars for each subsequent offense.
(6) Nothing in this section prohibits an employer from enforcing existing
personnel policies that do not conflict with this section.
(7) Nothing in this section permits an employee to disclose information that is
confidential under federal or state law or pursuant to a contract agreement between the
employer and the employee.
PART 2
EMPLOYER'S LIABILITY
8-2-201. Damages - fellow servant rule abolished - limitation on admission of
criminal history. (1) Every corporation or individual who employs agents, servants, or
employees, such agents, servants, or employees being in the exercise of due care, shall be
liable to respond in damages for injuries or death sustained by any such agent, servant, or
employee resulting from the carelessness, omission of duty, or negligence of such
employer, or which may have resulted from the carelessness, omission of duty, or
negligence of any other agent, servant, or employee of the employer, in the same manner
and to the same extent as if the carelessness, omission of duty, or negligence causing the
injury or death was that of the employer.
(2) (a) Information regarding the criminal history of an employee or former
employee may not be introduced as evidence in a civil action against an employer or its
employees or agents that is based on the conduct of the employee or former employee if:
(I) The nature of the criminal history does not bear a direct relationship to the
facts underlying the cause of action; or
(II) Before the occurrence of the act giving rise to the civil action, a court order
sealed any record of the criminal case or the employee or former employee received a
Colorado Revised Statutes 2013
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pardon; or
(III) The record is of an arrest or charge that did not result in a criminal
conviction; or
(IV) The employee or former employee received a deferred judgment at sentence
and the deferred judgment was not revoked.
(b) This subsection (2) does not supersede any statutory requirement to conduct a
criminal history background investigation or consider criminal history records in hiring
for particular types of employment.
8-2-202. Damages in case of death - limit. If the death of a person is caused by
an act of carelessness, omission of duty, or negligence as provided in section 8-2-201, the
corporation or individual who would have been liable if the death had not ensued shall be
liable to an action for damages regardless of the death of the party injured. In each such
case the jury may award such damages as it deems fair and just, with reference to the
necessary injury resulting from such death, to the parties who may be entitled to sue under
this part 2; except that, if the decedent left neither a widow, widower, or minor children
nor a dependent father or mother, the damages recoverable in any such action shall not
exceed forty-five thousand dollars.
8-2-203. Who may sue - consolidation of actions. (1) Every such action shall in
case of death be maintained:
(a) By the husband or wife of the deceased;
(b) If there is no husband or wife or if he or she fails to sue within one year after
such death, by the children of the deceased or their descendants;
(c) If such deceased is a minor or unmarried, without issue, by the father or
mother or by both jointly; or
(d) If there is no such person entitled to sue, by such other next of kin of the
deceased as may be dependent upon the deceased for support.
(2) Every such action, in case of death, may be maintained by any person entitled
to sue for the use and benefit of the others so entitled to sue as well as for the plaintiff so
suing, and the verdict of the jury and the judgment of the court shall specify the amount
of damages awarded to each person, and, if any such actions are separately brought, the
same shall be consolidated with the action first commenced in the court which has
jurisdiction of said actions when so consolidated.
8-2-204. Limitation of actions - limit of damages. All actions provided for by
this part 2 shall be brought within the time period prescribed in section 13-80-102, C.R.S.
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The amount of damages recoverable under this part 2 in case of personal injury resulting
solely from negligence of a coemployee shall not exceed the sum of twenty-five thousand
dollars.
8-2-205. Assumption of risk abolished. If any agent, servant, or employee, while
in the performance of his duty for his employer, is injured or killed in the employer's
service on account of the employer's negligence or any defect or peril connected with
ways, works, machinery, or instrumentalities used in the business of the employer which
could have been remedied or made safer by the use of ordinary diligence, a recovery for
such injury or death may be had. The fact that such employee had knowledge of the
defect or peril shall not be a bar to a recovery unless the repairing or remedying of such
defect or peril was his principal duty. All stipulations, contracts, or agreements between
an employee and his employer or between other persons contrary to the provisions of this
section shall be null and void.
ARTICLE 2.5
Freedom of Legislative and Judicial Access Act
8-2.5-101.
Preventing legislative and judicial access to employees intimidation of legislative witnesses - penalty. (1) (a) It is unlawful for any person to
adopt or enforce any rule, regulation, or policy forbidding or preventing any of its
employees, franchisees, or agents or entities under its control or oversight from, or to take
any action against its employees, franchisees, or agents or entities under its control or
oversight solely for, testifying before a committee of the general assembly or a court of
law or speaking to a member of the general assembly at the request of such committee,
court, or member regarding any action, policy, rule, regulation, practice, or procedure of
any person or regarding any grievance relating thereto. Any person violating any
provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not more than one thousand dollars.
(b) The prohibition in paragraph (a) of this subsection (1) shall not apply to
testimony before a committee of the general assembly or a court of law that discloses
confidential, proprietary, or otherwise privileged information of any person.
(1.5) (a) It is unlawful for any person:
(I) To intimidate a legislative witness, by use of a threat, in order to intentionally
influence or induce a legislative witness:
(A) To appear or not appear before a committee of the general assembly;
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(B) To give or refrain from giving testimony to a committee of the general
assembly;
(C) To testify falsely before a committee of the general assembly; or
(D) To avoid legal process summoning the legislative witness to attend and testify
before a committee of the general assembly; or
(II) To take any action against a legislative witness for testifying before a
committee of the general assembly.
(b) For the purposes of this subsection (1.5):
(I) "Legislative witness" means any individual that intends to testify or testifies
before a committee of the general assembly either voluntarily or pursuant to a subpoena
issued by any committee of the general assembly or of either house thereof.
(II) "Threat" means to communicate directly the intent to do any act that is
intended to harm the health, safety, property, business, or financial condition of the
legislative witness.
(c) Any person violating any provision of this subsection (1.5) is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than
one thousand dollars.
(2) (a) An employee, a franchisee, an agent or an entity under the control of any
person, or a legislative witness may recover damages, including reasonable attorney fees,
from any person for injuries suffered through a violation of this section.
(b) Nothing in this section shall be construed to prohibit an employee, a
franchisee, an agent or an entity under the control of any person, or a legislative witness
from pursuing any other right of action permitted pursuant to law for injuries suffered
through a violation of this section.
(3) Nothing in this section shall obligate any person to compensate an employee or
agent for time spent testifying before a committee of the general assembly or a court of
law or speaking to a member of the general assembly at the request or invitation of such
committee, court, or member regarding any action, policy, rule, regulation, practice, or
procedure of any person or regarding any grievance relating thereto.
(4) For purposes of this section, "person" means a corporation, a limited liability
company, a partnership, an association, a firm, a state agency as defined in section 2450.5-102 (4), C.R.S., a county, a city and county, a municipality, a federal agency, an
individual, or any officer or agent thereof.
ARTICLE 3
Labor Peace Act
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8-3-101. Short title. This article shall be known and may be cited as the "Labor
Peace Act".
8-3-102. Legislative declaration - matter of statewide concern - prohibition on
local enactments. (1) The public policy of the state as to employment relations and
collective bargaining, in the furtherance of which this article is enacted, is declared to be
as follows:
(a) It recognizes that there are three major interests involved, namely: That of the
public, the employee, and the employer. These three interests are to a considerable extent
interrelated. It is the policy of the state to protect and promote each of these interests with
due regard to the situation and to the rights of the others.
(b) Industrial peace, regular and adequate income for the employee, and
uninterrupted production of goods and services are promotive of all of these interests.
They are largely dependent upon the maintenance of fair, friendly, and mutually
satisfactory employment relations and the availability of suitable machinery for the
peaceful adjustment of whatever legitimate controversies may arise. It is recognized that
certain employers, including farmers and farmer cooperatives, in addition to their general
employer problems, face special problems arising from perishable commodities and
seasonal production which require adequate consideration. It is also recognized that
whatever may be the rights of disputants with respect to each other in any controversy
regarding employment relations, they should not be permitted in the conduct of their
controversy to intrude directly or indirectly into the primary rights of third parties to earn
a livelihood, transact business, and engage in the ordinary affairs of life by any lawful
means and free from molestation, interference, intimidation, restraint, or coercion.
(c) Negotiations of terms and conditions of work should result from voluntary
agreement between employer and employee. For the purpose of such negotiation, an
employee has the right, if he desires, to associate with others in organizing and bargaining
collectively through representatives of his own free choosing without intimidation or
coercion from any source.
(d) All rights of persons to join labor organizations or unions and their rights and
privileges as members thereof should be recognized, safeguarded, and protected. No
person shall be denied membership in a labor organization or union on account of race,
creed, color, religion, sex, sexual orientation, marital status, disability, national origin,
ancestry, or by any unfair or unjust discrimination. Arbitrary or excessive initiation fees
and dues shall not be required, nor shall excessive, unwarranted, arbitrary, or oppressive
fines, penalties, or forfeitures be imposed. The members are entitled to full and detailed
reports from their officers, agents, or representatives of all financial transactions and shall
have the right to elect officers by secret ballot and to determine and vote upon the
question of striking, not striking, and other questions of policy affecting the entire
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membership.
(e) In order to preserve and promote the interests of the public, the employee, and
the employer alike, the state shall establish standards of fair conduct in employment
relations and provide a convenient, expeditious, and impartial tribunal by which these
interests may have their respective rights and obligations adjudicated, without limiting the
jurisdiction of the courts to protect property, and to prevent and punish the commission of
unlawful acts. While limiting individual and group rights of aggression and defense, the
state substitutes processes of justice for the more primitive methods of trial by combat.
(f) It is declared to be the common law of the state that no act which if done by
one person would constitute a crime under the common law or statutes of this state is any
less a crime if committed by two or more persons or corporations acting in concert, and
no act which under the common law or statutes of this state is a wrongful act for which
any person has a remedy against the wrongdoer if done by one person is any less a
remedial wrong if done by two or more persons or corporations in concert, nor shall the
injured person be denied relief in the courts of this state in law or equity except as such
relief may be expressly limited by statute.
(g) (I) The general assembly hereby finds and determines that the matters
contained in this article have important statewide ramifications for the labor force in this
state. The general assembly, therefore, declares that the matters contained in this article
are of statewide concern.
(II) No unit of local government, whether by acting through its governing body or
an initiative, a referendum, or any other process, shall enact any jurisdiction-wide law or
ordinance with respect to minimum wages unless specifically authorized to do so by this
article; except that a unit of local government may set minimum wages paid to its own
employees.
(II.5) Notwithstanding the provisions of subparagraph (II) of this paragraph (g),
any local government regulation or law pertaining to minimum wages in effect as of
January 1, 1999, shall remain in full force and effect until such law is repealed by the
local government entity that enacted the law.
(III) If it is determined by the officer or agency responsible for distributing federal
moneys to a local government that compliance with this paragraph (g) may cause denial
of federal moneys that would otherwise be available or would otherwise be inconsistent
with requirements of federal law, this section shall be suspended, but only to the extent
necessary to prevent denial of the moneys or to eliminate the inconsistency with federal
requirements.
8-3-103. Construction. Except as specifically provided in this article, nothing in
this article shall be construed so as to interfere with or impede or diminish in any way the
right to strike or the right of individuals to work, nor shall anything in this article be so
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construed as unlawfully to invade the right to freedom of speech. Nothing in this article
shall be so construed or applied as to deprive any employee of any unemployment benefit
which he might otherwise be entitled to receive under any other laws of the state of
Colorado. The fact that any provisions of this article have been adopted from other states,
or the language of the statutes of other states has been used in the preparation of this
article shall not be taken to adopt as the construction of such provisions the decisions of
other states construing such statutes of other states. It is not the intention of the legislature
in adopting this article necessarily to adopt the construction that may have been placed
upon similar provisions by the courts of other states.
8-3-104. Definitions. As used in this article, unless the context otherwise requires:
(1) "All-union agreement" means a contractual provision between an employer or
group of employers and a collective bargaining unit representing some or all of the
employees of the employer or group of employers providing for any type of union
security and compelling an employee's financial support or allegiance to a labor
organization. "All-union agreement" includes, but is not limited to, contractual provision
for a union shop, a modified union shop, an agency shop (meaning a contractual provision
which provides for periodic payment of a sum in lieu of union dues but does not require
union membership), a modified agency shop, a prehire agreement, maintenance of dues,
or maintenance of membership.
(2) "Authority" means the state of Colorado; any board, commission, agency, or
instrumentality thereof; or any district, municipality, city and county, county, or
combination thereof, which acquires or operates a mass transportation system.
(3)
"Collective bargaining" means negotiation by an employer and the
representative of a majority of his employees who are in a collective bargaining unit or
their representatives concerning representation or terms and conditions of employment of
such employees in a mutually genuine effort to reach an agreement with reference to the
subject under negotiation.
(4) "Collective bargaining unit" means an organization selected by secret ballot, as
provided in section 8-3-107, by a majority vote of the employees of one employer
employed within the state who vote at an election for the selection of such unit; except
that, where a majority of such employees engaged in a single craft, division, department,
or plant have voted by secret ballot that the employees of such single craft, division,
department, or plant shall constitute their collective bargaining unit, it shall be so
considered. Two or more collective bargaining units may bargain collectively through the
same representative or where a majority of the employees in each separate unit have voted
to do so by secret ballot, as provided in section 8-3-107.
(5) and (6) Repealed.
(7) "Company union" means an organization of employees, the members of which
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are the employees of only one employer.
(8) "Director" means the director of the division of labor.
(9) "Division" means the division of labor in the department of labor and
employment.
(10) "Election" means a proceeding in which the employees authorized by this
article cast a secret ballot to select a collective bargaining unit or for any other purpose
specified in this article, including elections conducted by the division of labor or by any
tribunal having competent jurisdiction or whose jurisdiction has been accepted by the
parties.
(11) (a) "Employee" includes any person, other than an independent contractor,
domestic servants employed in and about private homes, and farm and ranch labor,
working for another for hire in the state of Colorado in a nonexecutive or nonsupervisory
capacity, and shall not be limited to the employees of a particular employer and shall
include any individual whose work has ceased solely as a consequence of or in
connection with any current labor dispute or because of any unfair labor practice on the
part of an employer; and
(b) Who has not refused or failed to return to work upon the final disposition of a
labor dispute or a charge of an unfair labor practice by a tribunal having competent
jurisdiction of the same or whose jurisdiction was accepted by the employee or his
representative;
(c) Who has not been found to have committed or to have been a party to any
unfair labor practice under this article;
(d) Who has not obtained regular and substantially equivalent employment
elsewhere; or
(e) Who has not been absent from his employment for a substantial period of time
during which reasonable expectancy of settlement has ceased, except by an employer's
unlawful refusal to bargain, and whose place has been filled by another engaged in the
regular manner for an indefinite or protracted period and not merely for the duration of a
strike or lockout; but shall not include any individual employed in the domestic service of
a family or person at his home or any individual employed by his parent or spouse or any
employee who is subject to the federal "Railway Labor Act".
(f) For purposes of this subsection (11), "farm" means stock, dairy, poultry, furbearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses,
orchards, and other structures used for the raising of agricultural or horticultural
commodities, provided such structures are utilized for at least fifty percent of the total
output produced.
(12) "Employer" means a person who regularly engages the services of eight or
more employees, other than persons within the classes expressly exempted under the
terms of subsection (11) of this section, and includes any person acting on behalf of any
such employer within the scope of his authority, express or implied. The term does not
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include the state or any political subdivision thereof, except where the state or any
political subdivision thereof acquires or operates a mass transportation system, or any
carrier by railroad, express company, or sleeping car company subject to the federal
"Railway Labor Act", 45 U.S.C. sec. 151 et seq., or any labor organization or anyone
acting in behalf of such organization other than when he is acting as an employer-in-fact.
(13) (a) "Labor dispute" means any controversy between an employer and such of
his employees as are organized in a collective bargaining unit concerning the rights or
process or details of collective bargaining. The entering into of a contract for an all-union
agreement or the refusal of an employer to enter into an all-union agreement shall not
constitute a labor dispute. It shall not be a labor dispute where the disputants do not stand
in the proximate relation of employer and employee. No jurisdictional dispute or
controversy between two or more unions as to which of them has or shall have
jurisdiction over certain kinds of work; or as to which of two or more bargaining units
constitutes the collective bargaining unit as to which the employer stands impartial or
ready to negotiate or bargain with whichever is legally determined to be such bargaining
unit, shall constitute a labor dispute.
(b) The general right of an employer to select his own employees is recognized
and shall be fully protected. It shall not constitute a labor dispute if an employer
discharges or refuses to employ an employee on account of incompetence, neglect of
work, unsatisfactory service, or dishonesty; but the discharge of an employee or the
refusal to employ an employee shall constitute a labor dispute only when such discharge
or refusal to employ is founded upon membership in a union or labor organization or
activity therein or when such discharge or failure to employ is in violation of a contract.
(c) No controversy between an employer and his employee shall constitute a labor
dispute until after a bargaining unit in accordance with this article is created and a dispute
arises between the bargaining unit and the employer.
(d) No labor dispute shall arise from the refusal of an employer to join a union or
to cease work in his own business.
(14) "Local union" means an organization of employees employed in this state, the
membership of which includes employees of one or more employers, whether or not they
are affiliated with an organization of employees employed in one or more other states.
(15) "Mass transportation system" means any system which transports the general
public by bus, rail, or any other means of conveyance moving along prescribed routes,
except any railroad subject to the federal "Railway Labor Act", 45 U.S.C. sec. 151 et seq.
(16) "Person" includes one or more individuals, partnerships, associations,
corporations, legal representatives, trustees, or receivers.
(17) "Representative" includes any person who is the duly authorized agent of a
collective bargaining unit.
(18) "Secondary boycott" includes causing or threatening to cause, and combining
or conspiring to cause or threaten to cause, injury to one not a party to the particular labor
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dispute, to aid which such boycott is initiated or continued, whether by:
(a) Withholding patronage, labor, or other beneficial business intercourse;
(b) Picketing;
(c) Refusing to handle, install, use, or work on particular materials, equipment, or
supplies; or
(d) Any other unlawful means in order to bring him against his will into a
concerted plan to coerce or inflict damage upon another or to compel the party with
whom the labor dispute exists to comply with any particular demands.
8-3-105. Director to administer - adopt rules and regulations. The director
shall enforce and administer the provisions of this article and may adopt reasonable rules
and regulations relative to its administration and to the conduct of all elections and
hearings pertaining to mass transportation as defined in section 8-3-104 (15). Such rules
and regulations shall not be effective until ten days after the date thereof.
8-3-106. Rights of employees. In accordance with the provisions of this article,
employees have the right of self-organization and the right to form, join, or assist labor
organizations, to bargain collectively through representatives of their own free choosing,
and to engage in lawful, concerted activities for the purpose of collective bargaining or
other mutual aid or protection. Each employee also has the right to refrain from any of
such activities. The rights of each employee are essential rights, and nothing contained in
this article shall be so construed as to infringe upon or have any operation against or in
conflict with such rights.
8-3-107. Representatives and elections. (1) A unit chosen for the purpose of
collective bargaining shall be the exclusive representative of all of the employees in such
unit, if the majority of the employees of one employer, or the majority of the employees
of one employer in a craft, vote at an election. But employees individually have the right
at any time to present grievances to their employer in person or through representatives of
their own free choosing, and the employer shall confer with them in relation thereto.
(2) When a question arises concerning the selection of a collective bargaining
unit, it shall be determined by secret ballot, and the director, upon request, shall cause the
ballot to be taken in such manner as to show separately the wishes of the employees in
any craft, division, department, or plant as to the selection of the collective bargaining
unit.
(3) When a question arises concerning the selection of a collective bargaining
unit, the director shall determine the question thereof by taking a secret ballot of
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employees and certifying in writing the results thereof to the bargaining units involved
and to their employer. There shall be included on any ballot for the selection of a
bargaining unit the names or suitable description of each bargaining unit submitted to the
director and claimed to be the appropriate unit by an employee or group of employees
participating in the election; except that the director, in his discretion, may exclude from
the ballot any bargaining unit which, at the time of the election, stands deprived of its
rights under this article by reason of a prior adjudication of its having engaged in an
unfair labor practice. The ballot shall be so prepared as to permit a vote against
representation by any unit named on the ballot. The director's certification of the results of
any election shall be conclusive as to the findings included therein, unless reviewed in the
manner provided by section 8-3-110 (8), for review of orders of the director.
(4) Questions concerning the selection of collective bargaining units may be
raised by petition of any employee or his employer or the representative of either of them.
Where it appears by the petition that any emergency exists requiring prompt action, the
director shall act upon said petition forthwith and hold the election requested within such
time as will meet the requirements of the emergency presented. The fact that one election
has been held shall not prevent the holding of another election among the same group of
employees, if it appears to the director that sufficient reason therefor exists.
(5) The director shall investigate and determine which persons shall be qualified
and entitled to vote at any election held by him and shall prepare and certify a poll list of
such qualified voters and shall file the same in the office of the director not later than
twenty-four nor earlier than forty-eight hours preceding the time of such balloting. The
list shall be available to the collective bargaining units whose interests are involved in the
election. On request of any employee, the list shall be prepared so as to show separately
which employees are entitled to vote for general representation of the employees and
which employees are entitled to vote separately for craft representation or representation
of any one of several plants of a common employer. No person whose name is not so
certified shall be entitled to vote at such election. The director shall protect the secrecy of
the ballot and shall take all proper measures for the accurate counting thereof and shall
certify the result thereof and immediately file such certificate in the records of the
division and make the same available for the inspection of any person interested. The
bargaining units so elected and certified shall be the respective representatives of the
employees so electing them and recognized as such under this article. The names of all
persons voting at the election for the selection of a bargaining unit shall be certified to the
division and filed in its records and shall constitute the voting roll for said bargaining unit
for all purposes under this article. The name of any person leaving such employment shall
be removed from the roll; except that any employee whose name appears on said voting
roll may have his name withdrawn from said roll by notice in writing to the division.
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8-3-108. What are unfair labor practices. (1) It is an unfair labor practice for
an employer, individually or in concert with others, to:
(a) Interfere with, restrain, or coerce his employees in the exercise of the rights
guaranteed in section 8-3-106;
(b) Initiate, create, dominate, or interfere with the formation or administration of
any labor organization or contribute financial support to it; except that an employer shall
not be prohibited from reimbursing employees at their prevailing wage rate for time spent
conferring with him, nor from cooperating with representatives of at least a majority of
his employees in a collective bargaining unit, at their request, by permitting employee
organizational activities on employer premises or the use of employer facilities where
such activities or use create no additional expense to the employer;
(c) (I) Encourage or discourage membership in any labor organization, employee
agency, committee, association, or representation plan by discrimination in regard to
hiring, tenure, or other terms or conditions of employment; except that an employer shall
not be prohibited from entering into an all-union agreement with the representatives of his
employees in a collective bargaining unit if such all-union agreement is approved by the
affirmative vote of at least a majority of all the employees eligible to vote or threequarters or more of the employees who actually voted, whichever is greater, by secret
ballot in favor of such all-union agreement in an election provided for in this paragraph
(c) conducted under the supervision of the director. Where the collective bargaining unit
involved is currently recognized under sections 8 or 9 of the "National Labor Relations
Act", as amended, (49 Stat. 449; 61 Stat. 136), or where the collective bargaining unit
involved is currently recognized by reason of certification by the director or the national
labor relations board, or where such units were so recognized at the time of an election
provided for in this paragraph (c), there is and shall be deemed to have been no need for a
certification election as a precedent to an election provided for in this paragraph (c) in
such collective bargaining unit on the issue of an all-union agreement. The employees in
such a recognized or certified unit within this state shall be the only employees eligible to
vote in an election provided for in this paragraph (c) held in such unit.
(II) (A) Any agreement as defined in section 8-3-104 (1) between an employer and
a labor organization in existence on June 29, 1977, which has not been voted upon by the
employees covered by it may, by written mutual agreement of such employer and labor
organization, be ratified and upon such ratification shall be filed with the director. Any
agreement as defined in section 8-3-104 (1) between an employer and a labor
organization in existence on June 29, 1977, which has not been ratified and filed, as
provided in this subparagraph (II), shall not be legal, valid, or enforceable during the
remaining term of that labor contract unless and until either the employer, the labor
organization, or at least twenty percent of the employees covered by such agreement file a
petition upon forms provided by the division, demanding an election submitting the
question of the all-union agreement to the employees covered by such agreement and said
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agreement is approved by the affirmative vote of at least a majority of all the employees
eligible to vote or three-quarters or more of the employees who actually voted, whichever
is greater, by secret ballot in favor of such all-union agreement in an election provided for
in this paragraph (c) conducted under the supervision of the director.
(B) Upon filing of such instrument of ratification with the director, the director
shall certify that such agreement complies with the provisions of section 8-3-104 (1)
notwithstanding the absence of any other election requirements of this article, and by
virtue of such ratification and certification, such agreement shall be deemed legal, valid,
and enforceable to the extent permitted under the provisions of this article, subject to the
provisions of sub-subparagraph (D) of this subparagraph (II).
(C) Within two weeks after the certification by the director provided for in subsubparagraph (B) of this subparagraph (II), the employer which is a party to such
agreement shall post or give written notice to all employees covered by such agreement
on the date of ratification of the fact that the agreement has been ratified and certified
pursuant to the provisions of this subparagraph (II) and of the right of such employees to
file a petition demanding an election as provided in sub-subparagraph (D) of this
subparagraph (II). Proof of giving of notice shall be filed with the director within twenty
days after the certification by the director provided for in sub-subparagraph (B) of this
subparagraph (II).
(D) Within forty-five days after the certification by the director provided for in
sub-subparagraph (B) of this subparagraph (II) twenty percent of the employees covered
by such agreement may file a petition, upon forms provided by the division, demanding
an election submitting the question of ratification of such agreement to the employees
covered by such agreement. If ratification of the agreement is approved by the affirmative
vote of at least a majority of all the employees eligible to vote or three-quarters or more of
the employees who actually voted, whichever is greater, in said election, the agreement
shall be conclusively deemed ratified. Such election shall be held as promptly as possible
following the filing of the petition. In the event that a certified contract expires or is
terminated prior to the conducting of such an election, such certification shall be
applicable to any subsequent agreement between the same parties until such election may
be held.
(III) The director shall declare any such all-union agreement terminated whenever:
(A) He finds that the labor organization involved unreasonably has refused to
receive as a member any employee of such employer, and any person interested may
come before the director, as provided in section 8-3-110, and ask the performance of this
duty; or
(B) The employer or twenty percent of the employees covered by such agreement
file a petition with the director on forms provided by the division seeking to revoke such
all-union agreement and, in an election conducted under the supervision of the director,
there is not an affirmative vote of at least a majority of all the employees eligible to vote
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or three-quarters or more of the employees who actually voted, whichever is greater, in
such election by secret ballot in favor of such all-union agreement. Such petition may
only be filed within a time period between one hundred twenty and one hundred five days
prior to the end of the collective bargaining agreement or prior to a triennial anniversary
of the date of such agreement, and the division must complete said election within sixty
days prior to the termination or triennial anniversary of said collective bargaining
agreement. The director may conduct an election within a collective bargaining unit no
more often than once during the term of any collective bargaining agreement or once
every three years in the case of agreements for a period longer than three years.
(IV) The director shall provide a means by which employees may submit
confidential petitions for an election under this paragraph (c), a means for verifying the
employment, status, and eligibility of petitioners, and a means for determining the
sufficiency of such petitions with respect to the twenty percent signature requirement, all
of which shall be accomplished without disclosing the identification of such petitioners,
except as allowed under subparagraph (V) of this paragraph (c). This duty shall apply to
petitions filed pursuant to subparagraph (II) (A), (II) (D), or (III) (B) of this paragraph (c).
(V) No officer or employee of the division shall disclose the names of any signers
to a petition or disclose how any person voted in an election to any person outside the
division except pursuant to a court order or subpoena issued by a governmental authority
or a court, and any such officer or employee who violates such nondisclosure provisions
or who refuses to call an election pursuant to this paragraph (c) or prevents or conspires
to prevent such call of an election commits a class 2 misdemeanor and shall be punished
as provided in section 18-1.3-501, C.R.S.
(d) Refuse to bargain collectively with the representatives of his employees in any
collective bargaining unit; except that where an employer with reasonable cause files with
the division a petition requesting a determination as to bargaining unit representation, he
shall not be deemed to have refused to bargain until an election has been held and the
result thereof has been certified to him by the director;
(e) Enter into an all-union agreement except in the manner provided in paragraph
(c) of this subsection (1);
(f) Violate the terms of a collective bargaining agreement, including an agreement
to accept an arbitration award;
(g) Refuse or fail to recognize or accept as conclusive of any issue in any
controversy as to employment relations the final determination, after appeal, if any, of any
tribunal having competent jurisdiction of the same or whose jurisdiction the employer has
accepted;
(h) Discharge or otherwise discriminate against an employee because he has filed
charges or given information or testimony in good faith under the provisions of this
article;
(i) Deduct labor organization dues or assessments from an employee's earnings,
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unless the employer has been presented with an individual order therefor, signed by the
employee personally and terminable at any time by the employee's giving at least thirty
days' written notice of such termination;
(j) Employ any person to spy upon employees or their representatives respecting
their exercise of any right created or approved by this article;
(k) Make, circulate, or cause to be circulated a blacklist as described in section 82-110;
(l) Commit any crime or misdemeanor in connection with any controversy as to
employment relations;
(m) Require a potential employee to furnish preemployment application
information regarding said applicant's record of civil or military disobedience, unless any
such matters resulted in a plea of guilty or a conviction by a court of competent
jurisdiction.
(2) It is an unfair labor practice for an employee, individually or in concert with
others, to:
(a) Coerce or intimidate an employee in the enjoyment of his legal rights,
including those guaranteed in section 8-3-106, or to intimidate his family or any member
thereof, picket his domicile, or injure the person or property of such employee or his
family or of any member thereof;
(b) Coerce, intimidate, or induce any employer to interfere with any of his
employees in the enjoyment of their legal rights, including those guaranteed in section 83-106, or to engage in any practice with regard to his employees which would constitute
an unfair labor practice if undertaken by him on his own initiative;
(c) Violate the terms of a collective bargaining agreement, including an agreement
to accept an arbitration award;
(d) Refuse or fail to recognize or accept as conclusive of any issue in any
controversy as to employment relations the final determination, after appeal, if any, of any
tribunal having competent jurisdiction of the same or whose jurisdiction the employees or
their representatives accepted;
(e) Cooperate in engaging in, promoting, or inducing picketing, boycotting, or any
other overt concomitant of a strike unless a majority in a collective bargaining unit of the
employees of an employer against whom such acts are primarily directed have voted by
secret ballot to call a strike;
(f) Hinder or prevent, by mass picketing, threats, intimidation, force, or coercion
of any kind, the pursuit of any lawful work or employment; or to obstruct or interfere with
entrance to or egress from any place of employment; or to obstruct or interfere with free
and uninterrupted use of public roads, streets, highways, railways, airports, or other ways
of travel or conveyance;
(g) Engage in a secondary boycott, or to hinder or prevent, by threats,
intimidation, force, coercion, or sabotage, the obtaining, use, or disposition of materials,
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equipment, or services, or to combine or conspire to hinder or prevent, by any means
whatsoever, the obtaining, use, or disposition of materials, equipment, or services;
(h) Take, retain, or remain in unauthorized possession of property or any part
thereof of the employer, or to engage in any concerted effort to interfere with production,
except by leaving the premises in an orderly manner for the purpose of going on strike;
(i) Engage in a sit-down strike on the premises or property of the employer;
(j) Fail to give the notice of intention to strike provided in section 8-3-113;
(k) Commit any crime or misdemeanor in connection with any controversy as to
employment relations;
(l) Demand or require any stand-in employee to be hired or employed by an
employer, or to demand or require that the employer employ or pay for an employee to
stand by or stand in for work being done by other employees, or to require the employer
to employ or pay for any employee not required by the employer or necessary for the
work of the employer;
(m) Do or cause to be done, on behalf of or in the interest of employers or
employees, or in connection with or to influence the outcome of any controversy as to
employment relations, any act prohibited by subsections (1) and (2) of this section.
(3) It is an unfair labor practice for an employee, individually or in concert with
others, or for a labor organization or any of its agents to:
(a) Induce or encourage the employees of an employer to engage in a strike or
concerted refusal in the course of their employment, or by any means to force or require
an employer or any one or more employees to refrain from or prevent the use of any
material, device, tool, or equipment intended or calculated to reduce the cost of the work;
(b) Require or force an employer to use any materials or do any work or render
any service in connection with any task, job, work, or service as a condition of using any
labor-saving device, equipment, tool, or instrument in the performance of such task, job,
work, or service;
(c) Impose on any employee any fine, penalty, or forfeiture because such
employee has used, is using, or has attempted to use a labor-saving device;
(d) (I) Engage in or induce or encourage employees of any employer to engage in
a strike or concerted refusal in the course of their employment to use, manufacture,
process, transport, or otherwise handle or work on any goods, articles, materials, or
commodities or to perform any service where an object thereof is forcing or requiring any
employer to assign particular work to employees in a particular trade, craft, or class rather
than to employees in another labor organization or in another trade, craft, or class unless
such employer is failing to conform to an order of the director or certification determining
the bargaining representative for employees performing such work; but nothing contained
in this subsection (3) shall be construed to make unlawful a refusal by any person to enter
upon the premises of any employer (other than his own employer). Whenever a complaint
is filed charging that any person or labor organization is engaged in the unfair labor
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practice defined in this paragraph (d), the director shall hear and determine the dispute
concerning the assignment of work out of which such complaint arises, unless within ten
days the parties to the dispute provide evidence to the director that the dispute is properly
adjusted, in which case the complaint shall be dismissed by the director.
(II) Upon the filing of a complaint under this paragraph (d), the director shall
make a preliminary investigation, and, if he finds that there is reasonable cause that the
complaint is true, he may issue an order directing that the employees or labor organization
cease and desist from striking, picketing, or refusing to handle or work on goods pending
a resolution by the director of the dispute out of which the complaint arises.
(III) Upon the failure or refusal of any person or labor organization against whom
such order is issued to comply with this order or direction, the district court of the district
wherein the strike, picketing, or refusal to handle or work on goods takes place may, upon
application of the director, issue injunctive relief in the manner provided in the Colorado
rules of civil procedure for courts of record in Colorado.
(e) With regard to the entirety of this subsection (3), the following shall apply:
Such material, device, tool, or equipment is germane to the employees' craft and not
injurious to the employees' health and safety or the public generally, and nothing in this
subsection (3) shall negate the rights of an employer and a labor organization to bargain
collectively pursuant to subsection (1) (d) of this section.
(4) It is an unfair labor practice to do or cause to be done, on behalf of or in the
interest of employers or employees, or in connection with or to influence the outcome of
any controversy as to employment relations, any act prohibited by subsections (1), (2),
and (3) of this section.
8-3-109. What are not unfair labor practices. (1) It is not an unfair labor
practice for any employer to refuse to grant a closed shop or all-union agreement or to
accede to any proposal therefor as provided in this article.
(2) The right of both employer and employee freely to express, declare, and
publish their respective views and proposals concerning any labor relationship shall not
be abrogated or limited by this article, nor shall the exercise of such right constitute an
unfair labor practice. No strike shall be lawful unless it is authorized by a majority vote of
the employees in the union involved taken by secret ballot such as is provided in this
article.
(3) It shall not be an unfair labor practice for an employer engaged primarily in the
building and construction industry to enter into an all-union agreement, except an
agreement providing for an agency shop or modified agency shop, with a labor
organization, which agreement is limited in its coverage to employees who, upon their
employment, will be engaged in the building and construction industry, if a copy of such
agreement is filed with the director and certified by him as provided in section 8-3-108
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(1) (c) (II) (B). Such agreement may be ratified as provided in section 8-3-108 (1) (c) (II)
(C) or terminated by the director as provided in section 8-3-108 (1) (c) (III).
8-3-110. Prevention of unfair labor practices. (1) Any controversy concerning
unfair labor practices may be submitted to the division in the manner and with the effect
provided in this article; but nothing in this article shall prevent the pursuit of equitable or
legal relief in courts of competent jurisdiction, nor shall it be any ground for refusal of
such relief that all of the administrative remedies provided in this article before the
division have not been exhausted.
(2) Upon the filing with the division by any party in interest of a complaint in
writing on a form provided by the division charging any person with having engaged in
any specific unfair labor practice, the division shall mail a copy of such complaint to all
persons so charged. Any other person claiming interest in the dispute or controversy, as
an employer, an employee, or representative thereof, shall be made a party upon
application. The director may bring in additional parties by service of a copy of the
complaint. Only one such complaint shall issue against a person with respect to a single
controversy, but any such complaint may be amended in the discretion of the director at
any time prior to the issuance of a final order based thereon. The persons so complained
of have the right to file an answer to the original or amended complaint and to appear in
person or otherwise and give testimony at the place and time fixed in the notice of
hearing. The director shall fix a time for the hearing on such complaint, which shall not
be less than ten nor more than forty days after the filing of such complaint. Notice shall
be given to the complainant and to each party named in the pleadings by service on him
personally or by mailing a copy thereof to him at his last known post office address at
least ten days before such hearing. In case a party in interest is located without the state
and has no known post office address within this state, a copy of the complaint and copies
of all notices shall be filed in the office of the secretary of state and shall also be sent by
registered mail to the last known post office address of such party. Such filing and
mailing shall constitute sufficient service with the same force and effect as if served upon
the party located within this state. Such hearing may be adjourned from time to time in the
discretion of the director and hearings may be held at such places as the director
designates. The director may initiate and file any such complaint of his own motion or at
the request of any interested person. Should the director file such a complaint on request,
he shall not disclose the name or interest of the person upon whose request the complaint
is filed, if in his judgment such disclosure would tend to prejudice the interest of any
person who may be affected by any order that the director may enter upon such complaint.
(3) The director has the power to issue subpoenas and administer oaths.
Depositions may be taken in the manner prescribed by the Colorado rules of civil
procedure, and all such depositions shall be taken upon commissions issued by the
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director. No person shall be excused from attending and testifying or from producing
books, records, correspondence, documents, or other evidence in obedience to the
subpoena of the director on the ground that the testimony or evidence required of him
may tend to incriminate him or subject him to a penalty or forfeiture under the laws of the
state of Colorado. No individual shall be prosecuted or subjected to any penalty or
forfeiture for any transaction, matter, or thing concerning which he may testify or produce
evidence, documentary or otherwise, before the director in obedience to a subpoena
issued by him. An individual so testifying shall not be exempt from prosecution and
punishment for perjury in the first degree committed in so testifying.
(4) Any person who willfully and unlawfully fails or neglects to appear or testify
or to produce books, papers, and records as required, upon application to a district court,
shall be ordered to appear before the director to testify or produce evidence if so ordered,
and failure to obey such order of the court may be punished by the court as a contempt
thereof.
(5) Each witness who appears before the director by his order or subpoena shall
receive for his attendance the fees and mileage provided for witnesses in civil cases in
courts of record, which shall be audited and paid by the state in the same manner as other
expenses are audited and paid, upon presentation of properly verified vouchers approved
by the director and charged to the proper appropriation for the division.
(6) A complete record shall be kept of all proceedings had before the director, and
all testimony and proceedings shall be taken down by the reporter appointed by the
director. Such proceedings shall not be governed by the technical rules of evidence, but
by such rules as are prescribed by the director for administrative hearings.
(7) After the final hearing the director shall promptly make and file his findings of
fact upon all of the issues involved in the controversy and his order which shall state his
determination as to the rights of the parties. Pending the final determination of any
controversy before him, the director, after hearing, may make interlocutory findings and
orders, which may be enforced in the same manner as final orders. Final orders may
dismiss the charges or require the person complained of to cease and desist from the
unfair labor practices found to have been committed; suspend his rights, immunities,
privileges, or remedies granted or afforded by this article as the director may specify, but
not more than one year; and require an employer to take such affirmative action,
including reinstatement of employees with or without pay, as the director may deem
proper. Any order may further require such person to make reports from time to time
showing the extent to which he has complied with the order.
(8) The director may authorize a deputy, referee, or administrative law judge
appointed pursuant to part 10 of article 30 of title 24, C.R.S., to take evidence and to
make findings and report them to the director. Any party in interest who is dissatisfied
with the findings or order of the director may seek judicial review pursuant to section 244-106, C.R.S.
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(9) The director, on his own motion, may set aside, modify, or change any of his
findings or orders at any time within twenty days from the date thereof if he discovers any
mistake therein or upon the ground of newly discovered evidence.
(10) If any party fails or neglects to obey an order of the director while the same is
in effect, the director may file a complaint in the district court of the county wherein such
person resides or usually transacts business for the enforcement of such order for
appropriate temporary relief or restraining order, and shall certify and file in the court the
record in the proceedings, including all documents and papers on file in the matter, and
pleadings and testimony upon which such order was entered, and the findings and order
of the director. Upon the filing the director shall cause notice thereof to be served upon
such party by mailing a copy to his last known post office address, and thereupon the
court has jurisdiction of the proceedings and of the question determined therein. Said
action may thereupon be brought on for hearing upon such order by the director serving
ten days' written notice upon the respondent, subject, however, to the Colorado rules of
civil procedure for a change of the place of trial or the calling in of another judge. Upon
such hearing the court may confirm, modify, or set aside the order of the director and
enter an appropriate decree. No objection that was not urged before the director shall be
considered by the court unless the failure or neglect to urge such objection is excused
because of extraordinary circumstances. The findings of fact made by the director, if
supported by credible and competent evidence in the record, shall be conclusive. The
court in its discretion may grant leave to adduce additional evidence before the court
where such evidence appears to be material and reasonable cause is shown for failure to
have adduced such evidence in the hearing before the director. The director may modify
his findings as to facts, or make new findings by reason of such additional evidence, and
he shall file such modified or new findings with the same effect as his original findings
and shall file his recommendations, if any, for the modification or setting aside of his
original order. The court's judgment and decree shall be final; except that the same shall
be subject to appellate review as provided by law.
(11) to (14) Repealed.
(15) Substantial compliance with the procedures of this article is sufficient to give
effect to the orders of the director, and they shall not be declared inoperative, illegal, or
void for any omission of a technical nature in respect thereto.
(16) The right of any person to proceed under this section and section 8-3-121
shall not extend beyond six months from the date of the specific act or unfair labor
practice alleged.
(17) The director also has the power by himself and on his own motion to initiate
proceedings in the manner provided in this section. It is likewise the duty of the director
to so initiate a proceeding in his own name whenever complaint is made to him by any
party in interest if it appears to the director that the disclosure of the name of the
complainant, either as an employee or group of employees or as an employer or agent or
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representative of the employer, would jeopardize the rights or interests or standing of any
party in interest. The proceedings so initiated by the director shall be conducted in the
same manner and have the same effect as provided for in this section.
(18) (a) The director has the power and it is his duty in carrying out the public
policy of the state, either upon his own initiative or upon the complaint of any party in
interest or any organization or persons representing any public interests, if there is
picketing which in the opinion of the director might tend to lead to riots, disturbances, or
assaults or disturb public peace or injure the property or persons of individuals, to limit
the number of pickets that may be permitted; and to prescribe the distance from any plant,
entrance, or exit where such picketing may be permitted; and to otherwise prescribe limits
to such picketing, including not only the number of persons picketing but also the manner
or method thereof; and to prevent the use of weapons of any kind or threats or
intimidation.
(b) Upon the failure or refusal of any person against whom any such order or
direction is issued to comply with such order or direction, the district court of the district
wherein the picketing takes place or the violation occurs, upon application of the director,
may issue injunctive relief in the manner provided in the Colorado rules of civil
procedure for courts of record in Colorado.
8-3-111.
Protection of employees when authority acquires certain
operations. (1) Before any authority may acquire and operate any property of a privately
or publicly owned mass transportation system, fair and equitable protective arrangements,
as determined by the director, shall be made to insure certain rights of employees. Such
protective arrangements shall include, without being limited to, such provisions as may be
necessary to accomplish the following objectives:
(a) The preservation of existing rights, privileges, and benefits of employees under
existing collective bargaining agreements between the mass transportation system and the
employees thereof, including the continuation of all pension rights and benefits of the
employees and their beneficiaries;
(b) The continuation of all collective bargaining in any situation existing at the
time of such acquisition and the assurance of employment of all the employees of such
mass transportation system so acquired;
(c) The protection of all individual employees with respect to their employment,
including priorities, seniorities, and right of advancement when in agreement with any
existing collective bargaining agreement;
(d) Training and retraining programs of employees and managing personnel.
(2) The contract whereby an authority acquires any property of a privately or
publicly owned mass transportation system shall specify with particularity, the terms and
conditions of all the protective arrangements set forth in this section, including all other
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protective arrangements which may be added through collective bargaining or by
direction of the director.
(3) The determination of the sufficiency of protective arrangements shall be made
by the director in accordance with such rules and regulations as the commission may from
time to time establish.
8-3-112. Arbitration. (1) Parties to a labor dispute may agree in writing to have
the director act as arbitrator or to name arbitrators to arbitrate all or any part of such
dispute, and thereupon the director shall have the power so to act. The director shall
appoint as arbitrators only competent, impartial, and disinterested persons. Proceedings in
any such arbitration shall be as provided by the rules of arbitration under the Colorado
rules of civil procedure.
(2) All parties to any labor dispute when the employer is an authority shall submit
to arbitration upon written order of the director when such written order is the result of
the procedure set forth in section 8-3-113 (3). Any order so given shall be subject to
appeal within five days of the receipt of such order by either the employee's representative
or the authority, who are parties in interest. Appeal of the order shall be made to the
district court in the judicial district where the most substantial number of the employees
concerned are employed. Such court shall either confirm, deny, amend, or continue the
order within sixty days following the application for appeal. The results of any arbitration
conducted in accordance with the procedure set forth in this article shall be binding upon
all parties in interest with the right of appeal to any court of competent jurisdiction on the
grounds that the director or arbitration board has been unfair, capricious, or unjust in its
conduct, determinations, or award.
8-3-113. Mediation. (1) The director has power to appoint any competent,
impartial, disinterested person to act as mediator in any labor dispute either upon his own
initiative or upon the request of one of the parties to the dispute. It is the function of such
mediator to bring the parties together voluntarily under such favorable auspices as will
tend to effectuate settlement of the dispute, but neither the mediator nor the director has
any power of compulsion in mediation proceedings. The director shall provide necessary
expenses and order reasonable compensation for such mediators as he may appoint.
(2) Where, as provided by this article, the exercise of the right to strike by the
employees of any employer engaged in the state of Colorado in the production,
harvesting, or initial processing, the latter after leaving the farm, of any farm or dairy
product produced in this state would tend to cause the destruction or serious deterioration
of such product, the employees shall give to the division at least thirty days' notice of their
intention to strike, and, in the case of employees in all other industries or occupations, at
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least twenty days' notice of their intention to strike. The division shall immediately notify
the employer of the receipt of such notice. Upon receipt of such notice, the director shall
take immediate steps to effect mediation, if possible. In the event of the failure of the
efforts to mediate, the director shall endeavor to induce the parties to arbitrate the
controversy. Any strike called or made effective before the expiration of twenty days
from the date of such notice shall constitute an unfair labor practice.
(3) Where the exercise of the right to strike is desired by the employees of any
authority, the employees or their representatives shall file with the division written notice
of intent to strike not less than forty calendar days prior to the date contemplated for such
strike. Within twenty days of the filing of the notice, the director shall enter an order
allowing or denying the strike based on the grounds of whether or not such strike would
interfere with the preservation of the public peace, health, and safety in accordance with
rules and regulations of the division. Any order denying a strike under this section shall
include an order to arbitrate in accordance with section 8-3-112. Such arbitration shall be
entered into not later than one hundred days from the filing of the notice of intent to
strike. Immediately upon receipt of a notice of intent to strike, the director shall take steps
to effect mediation, if possible. In the event of failure to mediate, the director shall
endeavor to induce the parties to arbitrate the controversy. Any strike before the
expiration of forty days from the giving of notice of intent to strike or in violation of an
order of the director, unless such order is changed on appeal or otherwise, shall constitute
an unfair labor practice.
(4) The division shall prescribe reasonable rules of procedure for mediation under
this section.
8-3-114. Duties of attorney general and district attorneys. Upon the request of
the director, the attorney general or the district attorney of the county in which a
proceeding is brought before the district court for the purpose of enforcing or reviewing
an order of the director shall appear and act as counsel for the director in such proceeding
and in any proceeding to review the action of the district court affirming, modifying, or
reversing such order.
8-3-115. Employer and employee committees. The director, from time to time,
may appoint joint, standing, or special committees composed in equal numbers of
representatives of employees and employers. The director may refer to any such
committee for its study and advice any matters concerning the relations of employers and
employees or the operation of this article.
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8-3-116. Interference with director - officer of division. Any person who
willfully assaults, resists, prevents, impedes, or interferes with the director or any officer,
deputy, agent, or employee of the division or any of its agencies in the performance of
duties pursuant to this article is guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine of not more than five hundred dollars, or by imprisonment in
the county jail for not more than one year, or by both such fine and imprisonment.
8-3-117. Existing contracts unaffected. Nothing in this article shall operate to
abrogate, annul, or modify any valid agreement respecting employment relations existing
on or before April 1, 1943.
8-3-118. Jurisdiction to issue restraining orders or injunctions. (1) Except as
otherwise provided in this article, no court has jurisdiction to issue in any case involving
or growing out of a labor dispute any restraining order or temporary or permanent
injunction which in specific or general terms prohibits any person from doing, whether
singly or in concert, any of the following acts:
(a) Ceasing or refusing to perform any work or to remain in any relation of
employment, regardless of any promise, undertaking, contract, or agreement to do such
work or to remain in such employment;
(b) Becoming or remaining a member of any labor organization or of any
employer organization, regardless of any undertaking or promise as is described in section
8-3-119;
(c) Paying or giving to or withholding from any person any strike or
unemployment benefits or insurance or other moneys or things of value;
(d) Aiding, by all lawful means, any person who is being proceeded against in, or
is prosecuting any action or suit in, any court of this state;
(e) Giving publicity to and obtaining or communicating information regarding the
existence of or the facts involved in any dispute, whether by advertising, speaking,
without intimidation or coercion, or by any other method not involving fraud, violence,
breach of the peace, or threat thereof;
(f) Ceasing as an organization to patronize any person with whom the organization
has a labor dispute or requiring it to employ any person;
(g) Assembling peaceably to do or to organize to do any of the acts specified in
this section or to promote lawful interests;
(h) Advising or notifying any person of an intention to do any of the acts specified
in this section;
(i) Agreeing with other persons to do or not to do any of the acts specified in this
section;
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(j) Advising, urging, or inducing, without fraud, violence, or threat thereof, others
to do the acts specified in this section, regardless of any such undertaking or promise as is
described in section 8-3-119;
(k) Doing in concert any acts specified in this section on the ground that the
persons engaged therein constitute an unlawful combination or conspiracy.
8-3-119. Relations contrary to public policy. (1) The following is declared to
be contrary to public policy and shall not afford any basis for the granting of legal or
equitable relief by any court against a party to such undertaking or promise or against any
other persons who may advise, urge, or induce, without fraud, violence, or threat thereof,
either party thereto to act in disregard of the undertaking or promise: Every undertaking
or promise made on or after April 1, 1943, whether written or oral, express or implied,
between any employee or prospective employee and his employer, prospective employer,
or any other individual, firm, company, association, or corporation, whereby:
(a) Either party thereto undertakes or promises to join or to remain a member of
some specific labor organization or to join or remain a member of some specific employer
organization or any employer organization; or
(b) Either party thereto undertakes or promises not to join or not to remain a
member of some specific labor organization or of some specific employer organization or
any employer organizations; or
(c) Either party thereto undertakes or promises that he will withdraw from an
employment relation in the event that he joins or remains a member of some specific
labor organization or any labor organization or of some specific employer organization or
any employer organization.
8-3-120. Conflict of provisions. Wherever the application of the provisions of
other statutes or laws conflict with the application of the provisions of this article, this
article shall prevail; except that, in any situation where the provisions of this article
cannot be validly enforced, the provisions of such other statutes or laws shall apply.
8-3-121. Civil liability for damages. (1) Any person who suffers injury because
of an unfair labor practice has a right of action, jointly and severally, against all persons
participating in said practice for damages caused to the injured person thereby.
(2) If, in accordance with this article or otherwise, persons otherwise unwilling to
do so are induced to violate contracts of employment or for services or materials, any
person injured thereby shall be entitled to recover and have judgment therefor at law
against the persons, jointly and severally, so inducing the violation of such obligations.
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8-3-122. Penalty for violation. Any person, firm, or corporation who violates any
of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof,
shall be fined for the first offense not less than fifty dollars nor more than one hundred
dollars and for the second and subsequent offenses not less than one hundred dollars nor
more than five hundred dollars, together with costs.
8-3-123. Nonapplicability of other statutes. The provisions of sections 8-1-108,
8-1-120, and 8-1-123 shall not apply to this article, but this article and the administration
thereof are governed and controlled as to all matters contained in sections 8-1-108, 8-1120, and 8-1-123 by the special provisions of this article.
ARTICLE 3.5
Nonimmigrant Agricultural Seasonal
Worker Pilot Program
8-3.5-101. Short title. This article shall be known and may be cited as the
"Colorado Nonimmigrant Agricultural Seasonal Worker Pilot Program Act".
8-3.5-102. Legislative declaration. It is the intent of the general assembly to
establish a nonimmigrant agricultural seasonal worker pilot program to expedite the
seasonal worker application and approval process in compliance with the existing federal
H-2A visa certification process so that eligible workers may come to Colorado legally,
safely, and in a timely manner to meet the demands of Colorado producers.
8-3.5-103. Definitions. As used in this article, unless the context otherwise
requires:
(1) "Agent" means a person or entity in the business of:
(a) Developing and submitting appropriate application materials to the state
employment security agency and the department responsible for issuing labor
certifications for a specific employer and job;
(b) Coordinating local recruitment with the employer and state employment
security agency;
(c) Developing appropriate documentation of employer requirements and
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employment terms for use in selecting foreign workers; and
(d) Filing for visa petition approval and coordinating visa issuance by the United
States consulate or embassy in the worker's country of origin.
(2) "Commissioner" means the commissioner of the Colorado department of
agriculture or his or her designee.
(3) "Department" means the Colorado department of labor and employment.
(4) "Director" means the executive director of the department of labor and
employment or his or her designee.
(5) "Employee" means a person who works for an employer and is an active
participant in the program.
(6) "Employer" means a person or entity that has applied and been accepted to
participate in the program and employs one or more employees.
(7) (a) "H-2A visa" means a temporary agricultural nonimmigrant visa that allows
foreign nationals to enter into the United States to perform agricultural labor or services
of a temporary or seasonal nature and that is issued pursuant to the federal "Immigration
Reform and Control Act of 1986", 8 U.S.C. sec. 1101 et seq.
(b) An H-2A visa allows for the admission of nonimmigrant foreign workers into
the United States to perform agricultural work that is temporary in nature, such as
harvesting crops. Nonimmigrants are persons legally admitted into the United States for a
specific purpose and time period and who do not intend to make the United States their
permanent residence. H-2A visas are administered jointly by the United States department
of labor and the United States citizenship and immigration services.
(8) "Labor certification" means the process by which the United States department
of labor is permitted to issue certification that there are not sufficient United States
workers who are able, willing, and qualified to perform agricultural services on a
temporary basis, and that the employment of foreign workers in the labor or services will
not adversely affect the wages and working conditions of workers in the United States.
Employers who anticipate a shortage of available United States workers needed to
perform agricultural labor on a temporary basis may apply to the United States
department of labor for certification. The application for certification must include a copy
of the job offer that will be used by each employer for the recruitment of United States
and H-2A workers, the estimated number of workers needed by the employer, and the
date by which the workers are needed. Employers are required to apply for certification at
least forty-five days in advance of their estimated date of need.
(9) "Program" means the nonimmigrant agricultural seasonal worker pilot
program established in section 8-3.5-104.
8-3.5-104. Pilot program - creation - powers of department - advisory
council. (1) There is hereby established in the department the nonimmigrant agricultural
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seasonal worker pilot program. The purpose of the program shall be to expedite the
application and approval of the federal H-2A visa certification process established as part
of the federal "Immigration Reform and Control Act of 1986", 8 U.S.C. sec. 1101 et seq.
Upon the promulgation of rules pursuant to section 8-3.5-112, the director or his or her
designee, in cooperation with the commissioner or his or her designee, shall implement
the program.
(2) The program shall include sectors of the agriculture industry identified by the
director in cooperation with the commissioner, shall be limited to one thousand
employees in the first year, and shall increase by one thousand additional employees
annually for four years thereafter.
(3) The director and the commissioner, in conjunction with the director of the
governor's office of economic development and international trade, may seek agreements
between Colorado and foreign countries to assist in the recruiting and selection of eligible
H-2A workers and in the maintenance of a pool of workers to depart for work in
Colorado upon the approval of the employees' federal H-2A visas and employer approval
for participation in the program. A family member of an employee may participate in the
program only if the family member also qualifies for and is issued a current H-2A visa.
(4) There is hereby established the nonimmigrant agricultural seasonal worker
pilot program advisory council. The advisory council members shall be the commissioner
of the department of agriculture or his or her designee, the executive director of the
department of labor and employment or his or her designee, the chairs of the house
business affairs and labor committee and the senate business, labor, and technology
committee, the chairs of the house and senate agriculture, livestock, and natural resources
committees, or their successor committees, and three appointees of the governor, one who
is a representative of the agriculture industry, one who has experience in immigration
services, and one who is a representative of a migrant worker advocacy group. Members
of the advisory council are entitled to reimbursement for actual and necessary expenses
incurred in the performance of their duties. The advisory council shall make
recommendations for the adoption of rules pursuant to section 8-3.5-112 and shall assist
in the preparation of the report to the general assembly pursuant to section 8-3.5-111. The
advisory council shall consult with health insurance carriers in this state to determine the
availability of health insurance plans for employees participating in the program. The
advisory council shall include in the report to the general assembly any legislative
recommendations deemed necessary to make health insurance available to seasonal
agricultural workers.
8-3.5-105. Application process - screening. (1) The department shall work with
employers participating in the program to expedite the H-2A visa application, approval,
and recruitment process so that the seasonal agricultural needs of the employers are met
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in a timely manner.
(2) The department is authorized to charge employers a fee necessary to cover the
costs of the program. The fees collected shall be transferred to the state treasurer who
shall deposit the moneys into the nonimmigrant agricultural seasonal worker pilot
program cash fund established in section 8-3.5-108.
(3) The director may retain agents to assist identified workers making applications
for H-2A visas through the United States embassy or consulate, to coordinate a medical
screening of workers prior to their departure to the United States, to coordinate travel to
Colorado, and to document each employee's return to his or her country of origin.
(4) The employer shall:
(a) Reimburse the employee for the costs of transportation and subsistence from
the site of recruitment to the place of employment when half of the contract period is
complete;
(b) Provide free transportation to the employee between the employee's local
housing and the work site;
(c) Pay for the costs of return transportation and subsistence to the place of
recruitment when the contract period is complete;
(d) Provide free housing for each employee that meets safety and health standards
established by federal law, which shall be subject to inspection by the department;
(e) Provide United States workers and employees the same benefits, wages, and
working conditions;
(f) Pay the employee wages that are in compliance with the federal requirements
established pursuant to the federal "Immigration Reform and Control Act of 1986", 8
U.S.C. sec. 1101 et seq.;
(g) Provide workers' compensation insurance;
(h) Provide all tools, supplies, and equipment required to perform the duties
assigned, without charge, to the employee;
(i) In compliance with federal law, provide each employee with three low-cost
meals per day and disclose the cost in the employment contract or provide free cooking
and kitchen facilities;
(j) Guarantee employment for at least three-fourths of the work days during the
work contract period;
(k) Guarantee that the employee will be paid at least twice per month; and
(l) Provide to the employee a copy of the work contract between the employer and
the employee.
(5) An employer seeking to employ employees through the program shall make
the following assurances:
(a) That the employer will comply with applicable federal, state, and local
employment laws;
(b) That no United States worker will be rejected for or terminated from
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employment other than for a lawful job-related reason; and
(c) That the employer will, in a timely manner, pay the fees associated with the
program.
8-3.5-106. Visa violation notification - employee compliance. (1) Each
employer shall notify the department within the time period specified in, and in
accordance with, section 8 CFR 214.2 (h) (5) (vi) (A) if an employee absconds from his
or her employment.
(2) If an employer, with reckless disregard, fails to notify the department as
required in subsection (1) of this section, the department may:
(a) Deny the employer future participation in the program; or
(b) Impose a fine on the employer for each violation, not to exceed two hundred
dollars per day per violation, that shall be deposited into the nonimmigrant agricultural
seasonal worker pilot program cash fund created in section 8-3.5-108.
(3) The department shall notify the United States citizenship and immigration
services of any known violations of the conditions for the issuance of an H-2A visa.
(4) An employee who complies with the conditions of the program shall have the
opportunity and be given priority to participate in the program the following year.
8-3.5-107. Retaliation prohibited. An employer shall not intimidate, threaten,
restrain, coerce, blacklist, discharge, or in any manner discriminate against any person
who has, with just cause, performed any act enumerated in 20 CFR 655.103 (g).
8-3.5-108. Nonimmigrant agricultural seasonal worker pilot program cash
fund. There is hereby established the nonimmigrant agricultural seasonal worker pilot
program cash fund in the state treasury, referred to in this section as the "fund". Moneys
in the fund shall consist of any fees or fines collected pursuant to this article. The moneys
in the fund shall be annually appropriated to the department for the administrative costs
associated with the program. Any moneys remaining in the fund at the end of any fiscal
year shall remain in the fund and shall not revert to the general fund or any other fund.
8-3.5-109. Identification cards issued by department of revenue. Within two
weeks after an employee's arrival in Colorado, the employee shall apply for an
identification card issued by the department of revenue pursuant to part 3 of article 2 of
title 42, C.R.S. The employer shall provide free transportation to the employee in order
for the employee to meet this requirement.
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8-3.5-110. Penalties - hearing - court action - civil actions. (1) A person who,
with reckless disregard, violates any provisions of this article, or who, with reckless
disregard, causes or induces another to violate any provisions of this article, may be
assessed a fine by the director of not more than five thousand dollars. Any moneys
collected pursuant to this section shall be transferred to the state treasurer who shall
deposit the same into the nonimmigrant agricultural seasonal worker pilot program cash
fund established in section 8-3.5-108.
(2) The person shall be afforded the opportunity for a hearing upon request to the
director made within thirty days after the date of issuance of the notice of assessment.
(3) If any person fails to pay an assessment after it has become a final and
unappealable order, or after the court has entered final judgment in favor of the
department, the director shall refer the matter to the state attorney general, who shall
recover the amount assessed by action in the appropriate court of competent jurisdiction.
In such action, the validity and appropriateness of the final order imposing the penalty
shall not be subject to review.
8-3.5-111. Report to general assembly. On or before February 1, 2010, the
director, in cooperation with the commissioner, shall report to the senate business, labor,
and technology committee, the senate agriculture, natural resources, and energy
committee, the house business affairs and labor committee, and the house agriculture,
livestock, and natural resources committee of the general assembly, or their successor
committees, regarding the progress of the program. The report shall include any
recommended legislative changes.
8-3.5-112. Rules. On or before January 1, 2009, the department, in consultation
with the commissioner and the advisory council created in section 8-3.5-104 (4), shall
promulgate rules as necessary for the delineation of oversight responsibilities to the
department under, and for the implementation of, this article.
8-3.5-113. Severability. If any provision of this article or its application to any
person or circumstance is held illegal, invalid, or unenforceable, no other provisions or
applications of this article shall be affected that can be given effect without the illegal,
invalid, or unenforceable provision or application, and to this end the provisions of this
article are severable.
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8-3.5-114. Repeal of article. This article is repealed, effective January 1, 2014.
Wages
ARTICLE 4
Wages
8-4-101. Definitions. As used in this article, unless the context otherwise requires:
(1) "Credit" means an arrangement or understanding with the bank or other
drawee for the payment of an order, check, draft, note, memorandum, or other
acknowledgment of indebtedness.
(2) "Director" means the director of the division of labor or his or her designee.
(3) "Division" means the division of labor in the department of labor and
employment.
(4) "Employee" means any person, including a migratory laborer, performing
labor or services for the benefit of an employer in which the employer may command
when, where, and how much labor or services shall be performed. For the purpose of this
article, an individual primarily free from control and direction in the performance of the
service, both under his or her contract for the performance of service and in fact, and who
is customarily engaged in an independent trade, occupation, profession, or business
related to the service performed is not an "employee".
(5) "Employer" means every person, firm, partnership, association, corporation,
migratory field labor contractor or crew leader, receiver, or other officer of court in
Colorado, and any agent or officer thereof, of the above mentioned classes, employing
any person in Colorado; except that the provisions of this article shall not apply to the
state or its agencies or entities, counties, cities and counties, municipal corporations,
quasi-municipal corporations, school districts, and irrigation, reservoir, or drainage
conservation companies or districts organized and existing under the laws of Colorado.
(6) "Field labor contractor" means anyone who contracts with an employer to
recruit, solicit, hire, or furnish migratory labor for agricultural purposes to do any one or
more of the following activities in this state: Hoeing, thinning, topping, sacking, hauling,
harvesting, cleaning, cutting, sorting, and other direct manual labor affecting beets,
onions, lettuce, potatoes, tomatoes, and other products, fruits, or crops in which labor is
seasonal in this state. Such term shall not include a farmer or grower, packinghouse
operator, ginner, or warehouseman or any full-time regular and year-round employee of
the farmer or grower, packinghouse operator, ginner, or warehouseman who engages in
such activities, nor shall it include any migratory laborer who engages in such activities
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with regard to such migratory laborer's own children, spouse, parents, siblings, or
grandparents.
(7) "Migratory laborer" means any person from within or without the limits of the
state of Colorado who offers his or her services to a field labor contractor, whether from
within or from without the limits of the state of Colorado, so that said field labor
contractor may enter into a contract with any employer to furnish the services of said
migratory laborers in seasonal employment.
(8) (a) "Wages" or "compensation" means:
(I) All amounts for labor or service performed by employees, whether the amount
is fixed or ascertained by the standard of time, task, piece, commission basis, or other
method of calculating the same or whether the labor or service is performed under
contract, subcontract, partnership, subpartnership, station plan, or other agreement for the
performance of labor or service if the labor or service to be paid for is performed
personally by the person demanding payment. No amount is considered to be wages or
compensation until such amount is earned, vested, and determinable, at which time such
amount shall be payable to the employee pursuant to this article.
(II) Bonuses or commissions earned for labor or services performed in accordance
with the terms of any agreement between an employer and employee;
(III) Vacation pay earned in accordance with the terms of any agreement. If an
employer provides paid vacation for an employee, the employer shall pay upon separation
from employment all vacation pay earned and determinable in accordance with the terms
of any agreement between the employer and the employee.
(b) "Wages" or "compensation" does not include severance pay.
8-4-102. Proper payment - record of wages. (1) Negotiable instrument
required. No employer or agent or officer thereof shall issue, in payment of or as an
evidence of indebtedness for wages due an employee, any order, check, draft, note,
memorandum, or other acknowledgment of indebtedness unless the same is negotiable
and payable upon demand without discount in cash at a bank organized and existing
under the general banking laws of the state of Colorado or the United States or at some
established place of business in the state. The name and address of the drawee shall
appear upon the face of the order, check, draft, note, memorandum, or other
acknowledgment of indebtedness; except that such provisions shall not apply to a public
utility engaged in interstate commerce and otherwise subject to the power of the public
utilities commission. At the time of the issuance of same, the maker or drawer shall have
sufficient funds in or credit with the bank or other drawee for the payment of same.
Where such order, check, draft, note, memorandum, or other acknowledgment of
indebtedness is protested or dishonored on the ground of insufficiency of funds or credit,
the notice of memorandum of protest or dishonor thereof shall be admissible as proof of
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presentation, nonpayment, and protest.
(2) Direct deposit. Nothing in this article shall prohibit an employer from
depositing wages due or to become due or an advance on wages to be earned in an
account in any bank, savings and loan association, credit union, or other financial
institution authorized by the United States or one of the several states to receive deposits
in the United States if the employee has voluntarily authorized such deposit in the
financial institution of the employee's choice.
(2.5) Paycard. (a) Nothing in this article shall prohibit an employer from
depositing an employee's wages on a paycard, so long as the employee:
(I) Is provided free means of access to the entire amount of net pay at least once
per pay period; or
(II) May choose to use other means for payment of wages as authorized in
subsections (1) and (2) of this section.
(b) As used in this section, "paycard" means an access device that an employee
uses to receive his or her payroll funds from his or her employer.
(3) Scrip prohibited. No employer or agent or officer thereof shall issue in
payment of wages due, or wages to become due an employee, or as an advance on wages
to be earned by an employee any scrip, coupons, cards, or other things redeemable in
merchandise unless such scrip, coupons, cards, or other things may be redeemed in cash
when due, but nothing contained in this section shall be construed to prohibit an employer
from guaranteeing the payment of bills incurred by an employee for the necessities of life
or for the tools and implements used by such employee in the performance of his or her
duties.
8-4-103. Payment of wages - insufficient funds - pay statement - record
retention - tip notification. (1) (a) All wages or compensation, other than those
mentioned in section 8-4-109, earned by any employee in any employment, other than
those specified in subsection (3) of this section, shall be due and payable for regular pay
periods of no greater duration than one calendar month or thirty days, whichever is
longer, and on regular paydays no later than ten days following the close of each pay
period unless the employer and the employee shall mutually agree on any other alternative
period of wage or salary payments.
(b) An employer is subject to the penalties specified in section 8-4-113 (1) if, two
or more times within any twenty-four-month period, the employer causes an employee's
check, draft, or order to not be paid because the employer's bank does not honor an
employee's paycheck upon presentment. The director may investigate complaints
regarding alleged violations of this paragraph (b).
(2) (a) In agricultural, horticultural, and floricultural pursuits and in stock or
poultry raising, when the employee in such employments is boarded and lodged by the
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employer, all wages or compensation earned by any employee in such employment shall
be due and payable for regular periods of no greater duration than one month and on
paydays no later than ten days following the close of each pay period.
(b) Nothing in paragraph (a) of this subsection (2), as amended by House Bill 051180, as enacted at the first regular session of the sixty-fifth general assembly, shall be
construed as changing the property tax classification of property owned by a floricultural
operation.
(3) Nothing in this article shall apply to compensation payments due an employee
under a profit-sharing plan, a pension plan, or other similar deferred compensation
programs.
(4) Every employer shall at least monthly, or at the time of each payment of wages
or compensation, furnish to each employee an itemized pay statement in writing showing
the following:
(a) Gross wages earned;
(b) All withholdings and deductions;
(c) Net wages earned;
(d) The inclusive dates of the pay period;
(e) The name of the employee or the employee's social security number; and
(f) The name and address of the employer.
(5) Each field labor contractor shall keep, for a period of three years on each
migratory laborer, records of wage rates offered, wages earned, number of hours worked,
or, in the case of contractual or piecework where a field labor contractor pays the
employee, the aggregate amount earned and all withholdings from wages on a form
furnished by and in the manner prescribed by the division. In addition, in each pay period,
each field labor contractor shall provide to each migratory laborer engaged in agricultural
employment a statement of the gross earnings of the laborer for the period and all
deductions and withholdings therefrom. The director may prescribe appropriate forms for
use pursuant to this subsection (5). All such payroll records shall be filed with the
division quarterly or at any time said labor contractor leaves this state or terminates his or
her contract. The director is charged with the responsibility of making periodic reports to
the governor's committee on migrant labor.
(6) It is unlawful for any employer engaged in any business where the custom
prevails of the giving of presents, tips, or gratuities by patrons thereof to an employee of
said business to assert any claim to, or right of ownership in, or control over such
presents, tips, or gratuities; and such presents, tips, or gratuities shall be the sole property
of the employee of said business unless the employer posts in his or her place of business
in a conspicuous place a printed card, at least twelve inches by fifteen inches in size,
containing a notice to the general public in letters at least one-half inch high that all
presents, tips, or gratuities given by any patron of said business to an employee thereof
are not the property of said employee but belong to the employer. Nothing in this section
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shall prevent an employer covered hereby from requiring employees to share or allocate
such presents, tips, or gratuities on a preestablished basis among the employees of such
business.
8-4-104. Funds available to pay wages - mining industry. Every person, firm,
association, corporation, or agent, manager, superintendent, or officer thereof engaged in
the business of extracting or of extracting and refining or reducing metals or minerals
other than petroleum, or other than parties having a free unencumbered title to the fee
simple of the property being worked, and also other than mining partnerships in respect to
the members of the partnerships, shall, before commencing work in any period for which
a single payment of wages is to be made, have on hand, either physically or by deposit
with a bank or trust company in the county where such property is located or, if there is
no bank or trust company in the county, in the bank or trust company nearest the property,
cash or readily salable securities of a market value equivalent to such cash, or accounts
receivable payable in the normal course of business prior to the next payday, in a
sufficient amount to make the payment of wages without discount or loss to any person
employed on the mining property for such period.
8-4-105. Payroll deductions permitted. (1) No employer shall make a deduction
from the wages or compensation of an employee except as follows:
(a) Deductions mandated by or in accordance with local, state, or federal law
including, but not limited to, deductions for taxes, "Federal Insurance Contributions Act"
("FICA") requirements, garnishments, or any other court-ordered deduction;
(a.5) Deductions for contributions attributable to automatic enrollment in an
employee retirement plan, as defined in section 8-4-105.5, regardless of whether the plan
is subject to the federal "Employee Retirement Income Security Act of 1974", as
amended;
(b) Deductions for loans, advances, goods or services, and equipment or property
provided by an employer to an employee pursuant to a written agreement between such
employer and employee, so long as it is enforceable and not in violation of law;
(c) Any deduction necessary to cover the replacement cost of a shortage due to
theft by an employee if a report has been filed with the proper law enforcement agency in
connection with such theft pending a final adjudication by a court of competent
jurisdiction; except that, if the accused employee is found not guilty in a court action or if
criminal charges related to such theft are not filed against the accused employee within
ninety days after the filing of the report with the proper law enforcement agency, or such
charges are dismissed, the accused employee shall be entitled to recover any amount
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wrongfully withheld plus interest. In the event an employer acts without good faith, in
addition to the amount wrongfully withheld and legally proven to be due, the accused
employee may be awarded an amount not to exceed treble the amount wrongfully
withheld. In any such action the prevailing party shall be entitled to reasonable costs
related to the recovery of such amount including attorney fees and court costs.
(d) Any deduction, not listed in paragraph (a), (a.5), (b), or (c) of this subsection
(1), that is authorized by an employee if the authorization is revocable, including
deductions for hospitalization and medical insurance, other insurance, savings plans,
stock purchases, supplemental retirement plans, charities, and deposits to financial
institutions;
(e) A deduction for the amount of money or the value of property that the
employee failed to properly pay or return to the employer in the case where a terminated
employee was entrusted during his or her employment with the collection, disbursement,
or handling of such money or property. The employer shall have ten calendar days after
the termination of employment to audit and adjust the accounts and property value of any
items entrusted to the employee before the employee's wages or compensation shall be
paid as provided in section 8-4-109. This is an exception to the pay requirements in
section 8-4-109. The penalty provided in section 8-4-109 shall apply only from the date of
demand made after the expiration of the ten-day period allowed for payment of the
employee's wages or compensation. If, upon such audit and adjustment of the accounts
and property value of any items entrusted to the employee, it is found that any money or
property entrusted to the employee by the employer has not been properly paid or returned
the employer as provided by the terms of any agreement between the employer and the
employee, the employee shall not be entitled to the benefit of payment pursuant to section
8-4-109, but the claim for unpaid wages or compensation of such employee shall be
disposed of as provided for by this article.
(2) Nothing in this section authorizes a deduction below the minimum wage
applicable under the "Fair Labor Standards Act of 1938", 29 U.S.C. sec. 201 et seq.
8-4-105.5. Automatic enrollment in retirement plans - relief from liability conditions - definitions. (1) (a) (I) An employer that provides automatic enrollment in
an employee retirement plan is not liable for the investment decisions made by the
employer on behalf of any participating employee with respect to the default investment
of contributions made for that employee to the plan if:
(A) The plan provides the participating employee at least quarterly opportunities
to select investments for the employee's contributions among investment alternatives
available under the plan;
(B) The participating employee is given notice of the investment decisions that
will be made in the absence of direction from the employee, a description of all the
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investment alternatives available for employee investment direction under the plan, and a
brief description of procedures available for the employee to change investments; and
(C) The employee is given at least annual notice of the actual default investments
made of contributions attributable to the employee.
(II) The relief from liability of the employer under this subsection (1) extends to
any employee retirement plan official who makes the actual default investment decisions
on behalf of participating employees.
(b) Nothing in this subsection (1) modifies any existing responsibility of
employers or other plan officials for the selection of investment funds for participating
employees.
(2) As used in this section:
(a) "Automatic enrollment" means an employee retirement plan provision under
which an employee will have a specified contribution made to the plan, equal to a
compensation reduction, that will be made for the employee unless the employee
affirmatively elects, in accordance with the federal "Pension Protection Act of 2006",
Pub.L. 109-280, either not to have any compensation reduction contributions or a
compensation reduction contribution in an alternative amount.
(b) "Employee retirement plan" means a plan described in sections 401(k) or
403(b) of the federal "Internal Revenue Code of 1986", as amended; a governmental
deferred compensation plan described in section 457 of the federal "Internal Revenue
Code of 1986", as amended; or a payroll deduction individual retirement account plan
described in sections 408 or 408A of the federal "Internal Revenue Code of 1986", as
amended.
8-4-106. Early payment of wages permitted. Nothing contained in this article
shall in any way limit or prohibit the payment of wages or compensation at earlier dates,
or at more frequent intervals, or in greater amounts, or in full when or before due.
8-4-107. Post notice of paydays. Every employer shall post and keep posted
conspicuously at the place of work if practicable, or otherwise where it can be seen as
employees come or go to their places of work, or at the office or nearest agency for
payment kept by the employer a notice specifying the regular paydays and the time and
place of payment, in accordance with the provisions of section 8-4-103, and also any
changes concerning them that may occur from time to time.
8-4-108. Payment in the event of strike. (1) In the event of a strike, every
employee who is discharged shall be paid at the place of discharge, and every employee
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who quits or resigns shall be paid at the office or agency of the employer in the county or
city and county where such employee has been performing the labor or service for the
employer. All payments of money or compensation shall be made in the manner provided
by law.
(2) In the event of any strike, the unpaid wages or compensation earned by such
striking employee shall become due and payable on the employer's next regular payday,
and the payment or settlement shall include all amounts due such striking employee
without abatement or reduction. The employer shall return to each striking employee,
upon request, any deposit or money or other guaranty required by the employer from the
employee for the faithful performance of the duties of his or her employment.
8-4-109. Termination of employment - payments required - civil penalties payments to surviving spouse or heir. (1) (a) When an interruption in the employeremployee relationship by volition of the employer occurs, the wages or compensation for
labor or service earned, vested, determinable, and unpaid at the time of such discharge is
due and payable immediately. If at such time the employer's accounting unit, responsible
for the drawing of payroll checks, is not regularly scheduled to be operational, then the
wages due the separated employee shall be made available to the employee no later than
six hours after the start of such employer's accounting unit's next regular workday; except
that, if the accounting unit is located off the work site, the employer shall deliver the
check for wages due the separated employee no later than twenty-four hours after the start
of such employer's accounting unit's next regular workday to one of the following
locations selected by the employer:
(I) The work site;
(II) The employer's local office; or
(III) The employee's last-known mailing address.
(b) When an employee quits or resigns such employee's employment, the wages or
compensation shall become due and payable upon the next regular payday. When a
separation of employment occurs, the employer shall make the separated employee's
check for wages due available at one of the following locations selected by the employer:
(I) The work site;
(II) The employer's local office; or
(III) The employee's last-known mailing address.
(2) Nothing in subsection (1) of this section shall limit the right of an employer to
set off any deductions pursuant to section 8-4-105 owing by the employee to the employer
or require the payment at the time employment is severed of compensation not yet fully
earned under the compensation agreement between the employee and employer, whether
written or oral.
(3) (a) If an employer refuses to pay wages or compensation in accordance with
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subsection (1) of this section, the employee or his or her designated agent shall make a
written demand for the payment within sixty days after the date of separation and shall
state in the demand where such payment can be received.
(a.5) If the employer disputes the amount of wages or compensation claimed by an
employee under this article and if, within fourteen days after the employee's demand, the
employer makes a legal tender of the amount that the employer in good faith believes is
due, the employer shall not be liable for any penalty unless, in a legal action, the
employee recovers a greater sum than the amount so tendered.
(b) If an employee's earned, vested, and determinable wages or compensation are
not mailed to the place of receipt specified in a demand for payment and postmarked
within fourteen days after the receipt of such demand, the employer shall be liable to the
employee for the wages or compensation, and a penalty of the sum of the following
amounts of wages or compensation due or, if greater, the employee's average daily
earnings for each day, not to exceed ten days, until such payment or other settlement
satisfactory to the employee is made:
(I) One hundred twenty-five percent of that amount of such wages or
compensation up to and including seven thousand five hundred dollars; and
(II) Fifty percent of that amount of such wages or compensation that exceed seven
thousand five hundred dollars.
(c) If the employee can show that the employer's failure to pay is willful, the
penalty required under paragraph (b) of this subsection (3) shall increase by fifty percent.
Evidence that a judgment has, within the previous five years, been entered against the
employer for failure to pay wages or compensation shall be admissible as evidence of
willful conduct.
(d) The daily earnings penalty shall not begin to accrue until the employer
receives the written demand set forth in paragraph (a) of this subsection (3). The
employee or his or her designated agent may commence a civil action to recover the
penalty set forth in this subsection (3). Any employee or his or her designated agent who
has not made a written demand for the payment within sixty days after the date of
separation or who has otherwise not been available to receive payment shall not be
entitled to any such penalty under this subsection (3). A payment under this subsection (3)
shall be made in the form of a check draft or voucher in the name of the employee.
(4) If, at the time of the death of any employee, an employer is indebted to the
employee for wages or compensation, and no personal representative of the employee's
estate has been appointed, such employer shall pay the amount earned, vested, and
determinable to the deceased employee's surviving spouse. If there is no surviving spouse,
the employer shall pay the amount due to the deceased employee's next legal heir upon
the request of such heir. If a personal representative for the employee has been appointed
and is known to the employer prior to payment of the amount due to the spouse or other
legal heir, the employer shall pay the amount due to such personal representative upon the
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request of such representative. The employer shall require proof of a claimant's
relationship to the deceased employee by affidavit and require such claimant to
acknowledge the receipt of any payment in writing. Any payments made by the employer
pursuant to the provisions of this section shall operate as a full and complete discharge of
the employer's indebtedness to the extent of the payment, and no employer shall thereafter
be liable to the deceased employee's estate or to the deceased employee's personal
representative. Any amounts received by a surviving spouse or legal heir shall be
considered in diminution of the allowance to the spouse or legal heir pursuant to the
"Colorado Probate Code", articles 10 to 17 of title 15, C.R.S. Nothing in this section
shall create a substantive right that does not exist in any agreement between the employer
and the employee.
8-4-110. Disputes - fees. (1) If, in any action, the employee fails to recover a
greater sum than the amount tendered by the employer, the court may award the employer
reasonable costs and attorney fees incurred in such action when, in any pleading or other
court filing, the employee claims wages or compensation that exceed the greater of seven
thousand five hundred dollars in wages or compensation or the jurisdictional limit for the
small claims court, whether or not the case was filed in small claims court or whether or
not the total amount sought in the action was within small claims court jurisdictional
limits. If, in any such action in which the employee seeks to recover any amount of wages
or compensation, the employee recovers a sum greater than the amount tendered by the
employer, the court may award the employee reasonable costs and attorney fees incurred
in such action. If an employer fails or refuses to make a tender within fourteen days after
the demand, then such failure or refusal shall be treated as a tender of no money for any
purpose under this article.
(1.5) This section shall not apply to a claimant who is found to be an independent
contractor and not an employee.
(2) Any person claiming to be aggrieved by violation of any provisions of this
article or regulations prescribed pursuant to this article may file suit in any court having
jurisdiction over the parties without regard to exhaustion of any administrative remedies.
8-4-111. Enforcement - duty of director - duties of district or city
attorneys. (1) It is the duty of the director to inquire diligently for any violation of this
article, and to institute the actions for penalties provided for in this article in such cases as
he or she may deem proper, and to enforce generally the provisions of this article.
(2) Nothing in this article shall be construed to limit the authority of the district
attorney of any county or city and county or the city attorney of any city to prosecute
actions for such violations of this article as may come to his or her knowledge, or to
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enforce the provisions of this article independently and without specific direction of the
director, or to limit the right of any wage claimant to sue directly or through an assignee
for any wages or penalty due him or her under the provisions of this article.
8-4-112. Enforcement of director subpoenas. All courts shall take judicial
notice of the seal of the director. Obedience to subpoenas issued by the director or his or
her duly authorized representative shall be enforced by the courts in any county or city
and county, as provided in section 24-4-105 (5), C.R.S., if said subpoenas do not call for
any appearance at a distance greater than one hundred miles.
8-4-113. Penalties pursuant to enforcement. (1) If a case against an employer is
enforced pursuant to section 8-4-111, any employer who without good faith legal
justification fails to pay the wages of each of his or her employees shall forfeit to the
people of the state of Colorado an amount determined by the director but no more than
the sum of fifty dollars per day for each such failure to pay each employee, commencing
from the date that such wages first became due and payable, to be recovered by order of
the director in a hearing held pursuant to section 24-4-105, C.R.S. For the convenience
and necessity of the parties or their representatives, the division is authorized to conduct
such hearing by telephone if the employer would otherwise be required to travel to
locations of the division of labor from outside the general vicinity of such locations.
(2) A certified copy of any final order of the director, imposing a fine or penalty
pursuant to this article, may be filed with the clerk of the district court having jurisdiction
over the parties at any time after the entry of the order. The certified copy shall be
recorded by the clerk of the district court in the judgment book of said court and entry
thereof made in the judgment docket, and it shall thenceforth have all the effect of a
judgment of the district court, and execution may issue thereon out of said court as in
other cases. All fines and penalties collected shall be paid to the division and transmitted
to the state treasurer for credit to the general fund.
8-4-114. Criminal penalties. (1) Any employer who violates the provisions of
section 8-4-103 (6) is guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not more than three hundred dollars, or by imprisonment in the
county jail for not more than thirty days, or by both such fine and imprisonment.
(2) In addition to any other penalty imposed by this article, any employer or agent
of an employer who, being able to pay wages or compensation and being under a duty to
pay, willfully refuses to pay as provided in this article, or falsely denies the amount of a
wage claim, or the validity thereof, or that the same is due, with intent to secure for
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himself, herself, or another person any discount upon such indebtedness or any
underpayment of such indebtedness or with intent to annoy, harass, oppress, hinder, delay,
or defraud the person to whom such indebtedness is due, is guilty of a misdemeanor and,
upon conviction thereof, shall be punished by a fine of not more than three hundred
dollars, or by imprisonment in the county jail for not more than thirty days, or by both
such fine and imprisonment. For purposes of this section, "being able to pay wages or
compensation" does not include an employer who is unable to pay wages or compensation
by reason of a chapter 7 bankruptcy action or other court action that results in the
employer having limited control over his or her assets.
8-4-115. Certificate of registration required. No person shall engage in
activities as a field labor contractor unless the person first obtains a certificate of
registration from the division and unless such certificate is in full force and effect and in
such person's immediate possession.
8-4-116. Issuance of certificate of registration. (1) The director, after
appropriate investigation, shall issue a certificate of registration to any person who:
(a) Has executed and filed with the director a written application subscribed and
sworn to by the applicant containing such information concerning his or her conduct and
method of operation as a field labor contractor as the director may require in order to
effectively carry out the provisions of this article;
(b) Has consented to designation of the director as the agent available to accept
service of process for any action against such field labor contractor at any and all times
when such field labor contractor has departed from the jurisdiction of this state or has
become unavailable to accept service;
(c) Has demonstrated evidence to the director that he or she has satisfied the
insurance requirements of articles 40 to 47 of this title.
(2) Upon notice and hearing in accordance with rules prescribed by the director,
the director may refuse to issue and may suspend, revoke, or refuse to renew a certificate
of registration of any field labor contractor if the director finds that such field labor
contractor:
(a) Knowingly has made any misrepresentation or false statement in his or her
application for a certificate of registration or any renewal thereof;
(b) Knowingly has given false or misleading information to any migratory laborer
concerning the terms, conditions, or existence of agricultural employment;
(c) Has failed, without justification, to perform agreements entered into or to
comply with arrangements made with farm operators;
(d) Has failed, without justification, to comply with the terms of any working
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arrangements he or she has made with migratory laborers;
(e) Has permitted his or her insurance maintained pursuant to the requirements of
paragraph (c) of subsection (1) of this section to terminate, lapse, or otherwise become
inoperative;
(f) Is not in fact the real party in interest in any such application or certificate of
registration and that the real party in interest is a person, firm, partnership, association, or
corporation which previously has been denied a certificate of registration; has had a
certificate of registration suspended or revoked; or which does not presently qualify for a
certificate of registration.
8-4-117. Additional obligations. (1) Every field labor contractor shall:
(a) Carry a certificate of registration at all times while engaging in activities as a
field labor contractor and exhibit the same to all persons with whom he or she intends to
deal in the capacity of a field labor contractor;
(b) Ascertain and disclose in writing to each migratory laborer, in a language in
which the migratory laborer is fluent at the time the migratory laborer is recruited, the
following information:
(I) The area of employment;
(II) The crops and operations on which the migratory laborer may be employed;
(III) Transportation, housing, and insurance to be provided to the migratory
laborer;
(IV) The wage rate to be paid;
(V) The charges by the field labor contractor for his or her services; and
(VI) The existence of any strikes at the place of contracted employment;
(c) Promptly pay or deliver, when due to the migratory laborer entitled thereto, all
moneys or other things of value entrusted to the field labor contractor by or on behalf of
such migratory laborer.
8-4-118. Authority to obtain information. The director or the director's
designated representative may investigate and gather data pertinent to matters that may
aid in carrying out the provisions of this article. In any case where a complaint has been
filed with the director or the director's designated representative regarding a violation of
this article, or where the director has reasonable grounds to believe that a field labor
contractor has violated provisions of this article, the director or the director's designated
representative may investigate and issue subpoenas as provided by section 8-4-112
requiring the attendance and testimony of any witness or the production of any evidence
in connection with such investigation.
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8-4-119. Penalty provisions. (1) Any field labor contractor who commits a
violation of any provision of this article or implementing regulation shall be subject to a
civil penalty of not more than two hundred fifty dollars for each violation. The penalty
shall be assessed by the director pursuant to a published schedule of penalties and after
written notice and after an opportunity for hearing under procedures established by the
director. This provision as to civil penalties shall not exclude the possibility of criminal
penalties as set forth in this article.
(2) The director, in the director's discretion, may grant a reasonable period of time,
but in no event longer than ten days after the day of notification, for correction of the
violation. In the event the violation is corrected within that period, no penalty shall be
imposed.
8-4-120. Discrimination prohibited - employee protections. No employer shall
intimidate, threaten, restrain, coerce, blacklist, discharge, or in any manner discriminate
against any employee who has filed any complaint or instituted or caused to be instituted
any proceeding under this article or related law or who has testified or may testify in any
proceeding on behalf of himself, herself, or another regarding afforded protections under
this article. Any employer who violates the provisions of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than
five hundred dollars, or by imprisonment in the county jail for not more than sixty days,
or by both such fine and imprisonment.
8-4-121. Nonwaiver of employee rights. Any agreement, written or oral, by any
employee purporting to waive or to modify such employee's rights in violation of this
article shall be void.
8-4-122. Limitation of actions. All actions brought pursuant to this article shall
be commenced within two years after the cause of action accrues and not after that time;
except that all actions brought for a willful violation of this article shall be commenced
within three years after the cause of action accrues and not after that time.
8-4-123. Termination of occupancy pursuant to contract of employment legislative declaration. (1) The general assembly hereby finds, determines, and declares
that many businesses, such as nursing homes or building management companies, either
desire or are required by law to have staff on premises at all times. As part of the
compensation for such employees, many employers offer housing to employees.
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However, once that employment relationship ceases, it may become undesirable for such
employees to occupy the premises for many reasons, including the safety of the
employer's patients, clients, customers, or tenants. Under traditional landlord and tenant
law, such employees may have established the technical or legal right to occupy the
premises for a fixed term that continues far beyond the cessation of the employment
relationship. However, in employment situations, such occupancy is not a tenancy, but a
license to occupy the premises pursuant to an employment relationship. The occupancy of
the premises by the employee is not entered into by the employer for the purpose of
providing housing, but merely as a means to provide services to the employer's patients,
clients, customers, or tenants. In certain cases, it may be necessary to curtail the
occupancy of former employees in order to protect the rights or safety of an employer's
tenants or patients.
(2) (a) Pursuant to a written agreement meeting the requirements of paragraph (b)
of this subsection (2), a license to occupy the premises entered into as part of an
employee's compensation may be terminated at any time after the employment
relationship ceases between an employer and employee. A termination of a license to
occupy the premises shall be effective three days after the service of written notice of
termination of a license to occupy the premises.
(b) An agreement made pursuant to this section shall be in writing and shall
include the following:
(I) The names of the employer and employee;
(II) A statement that the license to occupy the premises is provided to the
employee as part of the employee's compensation and is subject to termination at any time
after the employment relationship ceases;
(III) The address of the premises; and
(IV) The signature of both the employer and the employee.
(c) The notice of termination of a license to occupy the premises shall describe the
premises and shall set forth the time when the license to occupy the premises will
terminate. The notice shall be signed by the employer or the employer's agent or attorney.
(3) If an employee fails to vacate the premises within three days after the receipt
of the notice of termination of the license to occupy the premises, the employer may
contact the county sheriff to have the employee removed from the premises. The county
sheriff shall remove the employee and any personal property of the employee from the
premises upon the showing to the county sheriff of the notice of termination of the license
to occupy the premises and agreement pursuant to which the license to occupy the
premises was granted.
ARTICLE 5
Wage Equality Regardless of Sex
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8-5-101. Definitions. As used in this article, unless the context otherwise requires:
(1) Repealed.
(2) "Director" means the director of the division of labor.
(3) "Division" means the division of labor in the department of labor and
employment.
(4) "Employee" means any individual in the employment of any employer.
(5) "Employer" means the state and every county, city, town, and body corporate
and politic therein and every person, corporation, partnership, and association, including
those operating in a representative capacity.
(6) "Employment" means any trade, occupation, job, or position in which any
person may be engaged in the service of another for wages or salary, except household
and domestic servants and farm and ranch laborers.
8-5-102. Wage discrimination prohibited. No employer shall make any
discrimination in the amount or rate of wages or salary paid or to be paid his employees in
any employment in this state solely on account of the sex thereof.
8-5-103. Enforcement - rules and regulations - complaints. (1) The director
has the power to administer, carry out, and enforce all of the provisions of this article and
may promulgate rules and regulations for that purpose. Copies of the rules and regulations
shall be furnished by the division to all employees and employers upon written request.
(2) Upon written complaint, duly executed and verified, by any employee that any
employer has, within one year from the date of such complaint, violated the provisions of
section 8-5-102, the director or any referee of the division may proceed to hear and
determine such complaint, and the director may make an award upon said complaint.
Judicial review may be had of any award of the director under this article pursuant to
section 24-4-106, C.R.S.
8-5-104. Employer liability - awards - suits. An employer who violates the
provisions of section 8-5-102 is liable in an amount equal to the difference between the
amount which he paid to the complaining employee and the amount which the employee
would have received had there been no discrimination; and, if the director finds that such
discrimination was willful, the director may impose a penalty upon the employer in
addition thereto of not more than the amount of such difference. The amount of such
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liability so determined by the director shall constitute the award of the director. Such
award shall be the property of the employee but may be recovered for the employee in a
suit brought by the director in his name in any court in the county of the residence of the
employer within this state having jurisdiction of the amount of the demand in the suit.
The director may join in one suit all of his awards against any one employer under this
article.
8-5-105. Records open to inspection. When complaint is made to the division by
any employee against any employer for a violation of this article, all books, records, and
payrolls of such employer, material and pertinent to such complaint, shall be open for
inspection by the division or any of its agents duly appointed for that purpose.
8-5-106. Colorado pay equity commission - creation - duties - cash fund report - repeal. (1) (a) There is hereby created in the office of the executive director in
the department of labor and employment the Colorado pay equity commission, referred to
in this section as the "commission". The commission consists of eleven members as
follows:
(I) The executive director of the department of labor and employment or his or her
designee;
(II) The director of the civil rights division in the department of regulatory
agencies or his or her designee;
(III) One member representing higher education who has expertise in pay equity
issues, appointed by the governor;
(IV) Two members appointed by the president of the senate as follows:
(A) One member representing a statewide labor union federation that includes
private and public sector unions; and
(B) One member representing a national organization that serves minority
communities and communities of color;
(V) Two members appointed by the speaker of the house of representatives as
follows:
(A) One member of a women's national association or organization; and
(B) One member who is an attorney with experience in labor and employment
issues, is an active member of a statewide association of attorneys, and represents
employees;
(VI) One member representing a business association, appointed by the minority
leader of the senate;
(VII) One member representing a chamber of commerce or a consortium of
chambers of commerce, appointed by the minority leader of the house of representatives;
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(VIII) One member who is a private, for-profit employer with fewer than fifteen
employees, appointed jointly by the minority leaders of the senate and house of
representatives; and
(IX) One member who is a private, for-profit employer with fifteen or more
employees, appointed jointly and with the unanimous consent of the president and
minority leader of the senate and the speaker and minority leader of the house of
representatives.
(b) (I) The initial appointments to the commission shall be made within ninety
days after May 25, 2010. If the appointing authority for a particular position on the
commission fails to appoint a person to fill the position by the ninetieth day after May 25,
2010, the commission, by a majority vote of the members appointed by such date, shall
select a qualified person to fill the position. Members of the commission shall serve twoyear terms of office, not to exceed two consecutive terms of office.
(II) Upon the vacancy of a position on the commission, the appointing authority
for that position on the commission shall appoint a qualified person to complete the
remainder of the unexpired term. If the appointing authority fails to appoint a person to
fill the vacancy within sixty days after the date the vacancy occurs, the commission, by
majority vote, shall select a qualified person to fill the vacancy.
(c) At its first meeting, the commission shall elect a chair from its membership.
(d) The commission shall convene its first meeting no later than September 1,
2010, and shall meet quarterly thereafter or more frequently, as necessary, based on the
workload of the commission.
(e) Members of the commission shall serve without compensation and shall not be
reimbursed for any expenses that they incur by serving on the commission.
(2) The department of labor and employment may accept gifts, grants, and
donations on behalf of the commission to fund the commission's costs. Any gifts, grants,
or donations received by the department for the benefit of the commission shall be
deposited in the pay equity commission cash fund, which fund is hereby created in the
state treasury. Interest earned on the deposit and investment of moneys in the fund shall
be deposited in the fund. Moneys in the fund are continuously appropriated to the
department to fund the commission's costs in complying with this section.
(3) The commission's work, in conjunction with the department, includes:
(a) Educating employers in the state about issues or practices that may contribute
to pay inequities;
(b) Working with business groups and educational institutions to develop and
maintain an inventory of best practices for encouraging equal pay;
(c) Encouraging employers to implement equal pay best practices;
(d) Studying other state models of equal pay practices that achieve pay equity;
(e) Developing a program recognizing employers who pursue pay equity practices;
(f) Conducting outreach and education to employees and employers regarding pay
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equity; and
(g) Working to establish the state of Colorado as a model employer with regard to
pay equity.
(4) (a) By June 30, 2012, and by each June 30 through June 30, 2015, the
commission shall submit a report to the executive director of the department, detailing the
work of the commission, including the education and outreach the commission has
engaged in, the steps taken to encourage employers to implement equal pay best practices,
the status of the inventory of best practices and the recognition program and whether any
employers have been recognized under the program, any findings the commission has
made based on its study of other states and practices in this state, and any other relevant
information. The executive director of the department shall present the written report to
the business, labor, and technology committee of the senate and the business affairs and
labor committee of the house of representatives, or their successor committees.
Following presentation of the report to the legislative committees, the department shall
post the report on its web site.
(b) The commission shall include, in the annual reports required under paragraph
(a) of this subsection (4), any recommendations submitted since the date of the prior
annual report to the executive director pursuant to subsection (5) of this section; except
that the annual report required to be submitted by June 30, 2012, shall include all such
recommendations made prior to that date.
(5) The commission may submit to the executive director, at any time,
recommendations for policy or administrative changes that the commission has approved
by at least a two-thirds vote of its membership.
(6) This section is repealed, effective July 1, 2015. Prior to such repeal, the
commission shall be reviewed in accordance with section 2-3-1203, C.R.S.
ARTICLE 6
Minimum Wages of Workers
8-6-101. Legislative declaration - minimum wage of workers - matter of
statewide concern - prohibition on local minimum wage enactments. (1) The welfare
of the state of Colorado demands that workers be protected from conditions of labor that
have a pernicious effect on their health and morals, and it is therefore declared, in the
exercise of the police and sovereign power of the state of Colorado, that inadequate
wages and unsanitary conditions of labor exert such pernicious effect.
(2) The general assembly hereby finds and determines that issues related to the
wages of workers in Colorado have important statewide ramifications for the labor force
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in this state. The general assembly, therefore, declares that the minimum wages of
workers in this state are a matter of statewide concern.
(3) (a) No unit of local government, whether by acting through its governing body
or an initiative, a referendum, or any other process, shall enact any jurisdiction-wide laws
with respect to minimum wages; except that a unit of local government may set minimum
wages paid to its own employees.
(b) Notwithstanding the provisions of paragraph (a) of this subsection (3), any
local government regulation or law pertaining to minimum wages in effect as of January
1, 1999, shall remain in full force and effect until such law is repealed by the local
government entity that enacted the law.
(c) If it is determined by the officer or agency responsible for distributing federal
moneys to a local government that compliance with this subsection (3) may cause denial
of federal moneys that would otherwise be available or would otherwise be inconsistent
with requirements of federal law, this section shall be suspended, but only to the extent
necessary to prevent denial of the moneys or to eliminate the inconsistency with federal
requirements.
8-6-102. Construction. Whenever this article or any part thereof is interpreted by
any court, it shall be liberally construed by such court.
8-6-103. Definitions. As used in this article, unless the context otherwise requires:
(1) and (2) Repealed.
(3) "Director" means the director of the division of labor.
(4) "Division" means the division of labor in the department of labor and
employment.
(5) "Minor" means any person of either sex under the age of eighteen years.
(6) "Occupation" means every vocation, trade, pursuit, and industry.
(7) Repealed.
8-6-104. Wages shall be adequate - conditions healthful and moral. It is
unlawful to employ workers in any occupation within the state of Colorado for wages
which are inadequate to supply the necessary cost of living and to maintain the health of
the workers so employed. It is unlawful to employ workers in any occupation within this
state under conditions of labor detrimental to their health or morals.
8-6-105. Director to investigate. It is the duty of the director to inquire into the
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wages paid to employees and into the conditions of labor surrounding said employees in
any occupation in this state if the director has reason to believe that said conditions of
labor are detrimental to the health or morals of said employees or that the wages paid to a
substantial number of employees are inadequate to supply the necessary cost of living and
to maintain such employees in health. At the request of not less than twenty-five persons
engaged in any occupation, the director shall forthwith make such investigation as is
provided in this article. Such investigation may be made at any time, upon the initiative of
the director.
8-6-106. Determination of minimum wage and conditions. The director shall
determine the minimum wages sufficient for living wages for persons of ordinary ability,
including minimum wages sufficient for living wages, whether paid according to time
rate or piece rate; the minimum wages sufficient for living wages for learners and
apprentices; standards of conditions of labor and hours of employment not detrimental to
health or morals for workers; and what are unreasonably long hours. In all such
determinations, the director shall be bound by the provisions of this article and of section
15 of article XVIII of the state constitution; except that, if a higher minimum wage rate is
established by applicable federal law or rules, the director shall be bound by such federal
law or rules.
8-6-107. Powers of director - duty of employer. (1) The director, for the
purposes of this article, has power to investigate and ascertain the conditions of labor and
the wages in the different occupations, whether paid by time rate or piece rate, in the state
of Colorado. The director has power, in person or through any authorized representative,
to inspect and examine and make excerpts from any books, reports, contracts, payrolls,
documents, papers, and other records of any employer that in any way pertain to the
question of wages and to require from any such employer full and true statements of the
wages paid.
(2) Every employer shall keep a register of the names, ages, dates of employment,
and residence addresses of all employees. It is the duty of every such employer, whether a
person, firm, or corporation, to furnish to the director, upon request, any reports or
information which the director may require to carry out the purposes of this article, such
reports and information to be verified by the oath of the person, or a member of the firm
or the president, secretary, or manager of the corporation, furnishing the same if and
when so requested by the director; and the director or any authorized representative shall
be allowed free access to the place of business of such employer for the purpose of
making any investigation authorized by this article.
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8-6-108. Public hearings - witness fees - contempt - director to make
rules. (1) The director may hold public hearings at such times and places as he deems
proper for the purpose of investigating any of the matters he is authorized to investigate
by this article at which hearings employers, employees, or other interested persons may
appear and give testimony as to the matter under consideration. The director has the
power to subpoena and compel the attendance of any witness and to administer oaths,
also, by subpoena, to compel the production of any books, papers, or other evidence at
any public hearing of the director or at any session of any wage board. All witnesses
subpoenaed by said director shall be paid the same mileage and per diem as are allowed
by law to witnesses in civil cases before the district court of the state of Colorado. If any
person fails to attend as a witness or to bring with him any books, papers, or other
evidence when subpoenaed by the director or refuses to testify when ordered so to do, the
director may apply to any district court in this state to compel obedience on the part of
such person. The district court shall thereupon compel obedience by proceedings for
contempt as in cases of disobedience of any order of said court in a proceeding pending
before said court. The director shall not be bound by the technical rules of evidence. Said
director may hold meetings for the transaction of any of his business at such times and
places as he prescribes.
(2) The director has power to make reasonable and proper rules and procedure and
to enforce said rules and procedure.
8-6-108.5. Minimum wage - rules. (1) Effective July 1, 1977, the minimum
wage for minors may be fifteen percent below the minimum wage for other workers;
except that the full minimum wage shall be paid to any emancipated minor. An
emancipated minor shall mean any individual less than eighteen years of age who:
(a) Has the sole or primary responsibility for his own support;
(b) Is married and living away from parents or guardian;
(c) Is able to show that his well-being is substantially dependent upon being
gainfully employed.
(2) An employer may pay a rate of fifteen percent lower than the minimum wage
to persons certified by the director to be less efficient due to a physical disability.
(3) The director may issue only such rules as are necessary to carry out the
provisions of this article and as are consistent with the purposes and intent of section 8-6101 and section 15 of article XVIII of the state constitution; except that, if a higher
minimum wage rate is established by applicable federal law or rules, the director's rules
shall be consistent with such federal law or rules.
8-6-109. Methods of establishing minimum wages - wage board. (1) If after
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investigation the director is of the opinion that the conditions of employment surrounding
said employees are detrimental to the health or morals or that a substantial number of
workers in any occupation are receiving wages, whether by time rate or piece rate,
inadequate to supply the necessary costs of living and to maintain the workers in health,
the director shall proceed to establish minimum wage rates either directly or by the
indirect method described in subsection (2) of this section. If he selects the direct method,
the director shall establish the minimum wage rates.
(2) If he adopts the indirect method, the director shall establish a wage board
consisting of not more than three representatives of employers in the occupation in
question, and of an equal number of persons to represent the employees in said
occupation, and of an equal number of disinterested persons to represent the public, and
someone representing the director if it is desired. The director shall name and appoint all
members of the wage board and designate the chairman thereof. The selection of
members representing employers and employees shall be, so far as practicable, through
election by employers and employees respectively, subject to approval and selection by
the director. The members of the wage board shall be compensated at the same rate and
fees for service as jurors in courts of record, and they shall be allowed their necessary
traveling and clerical expenses incurred in the actual performance of their duties, to be
paid from the appropriations for the expenses of the division.
(3) The proceedings and deliberations of such wage board shall be made a matter
of record for the use of the director and shall be admissible as evidence in any
proceedings before the director. Each wage board has the same power as the director to
subpoena witnesses, administer oaths, and compel the production of books, papers, and
other evidence. Witnesses subpoenaed by a wage board shall be allowed the same
compensation as when subpoenaed by the director.
8-6-110. Wage board - duties - report - quorum. The director may transmit to
each wage board all pertinent information in his possession relative to the wages paid or
material to the subject of inquiry of the occupation in question. Each wage board shall
endeavor to determine, if requested so to do by the director, the standard conditions of
employment; the minimum wage, whether by time rate or piece rate, adequate to maintain
in health and to supply with the necessary cost of living an employee of ordinary ability in
the occupation in question, or in any branches thereof; and suitable minimum wages,
graded, so far as practicable, on a rising scale toward the minimum allowed experienced
workers, for learners and apprentices. When a majority of the members of a wage board
agree upon standard conditions of employment or minimum wage board determinations,
they shall report such determinations to the director, together with the reasons therefor
and the facts relating thereto. A majority of the members of any such wage board shall
constitute a quorum.
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8-6-111. Director to review report. (1) Upon the receipt of a report from a wage
board, the director shall review the same and may approve or disapprove any
determination or recommit the subject to the same or a new wage board. If the director
approves any of the determinations of the wage board, said director shall publish notice
not less than once a week for two successive weeks in a newspaper of general circulation
published in the county in which any business directly affected thereby is located, that he
will, on a date and at a place named in said notice, hold a public meeting, at which all
persons in favor of or opposed to said recommendations will be given a hearing.
(2) After publication of notice and the meeting, the director, if so desired, may
make and render such an order as may be proper or necessary to adopt the
recommendations and carry the same into effect and require all employees in the
occupation directly affected thereby to preserve and comply with such recommendations
and order. Such order is effective thirty days after it is made and rendered and shall be in
full force and effect on and after that day. After the order is effective, it is unlawful for
any employer to violate or disregard any of the terms of the order or to employ any
worker in any occupation covered by the order at lower wages or under other conditions
than authorized or permitted by the order. The director shall, as far as is practicable, mail
a copy of any such order to every employer affected thereby; and every employer affected
by the order shall keep a copy thereof posted in a conspicuous place in such employer's
establishment. Such order shall include a notice of the contents of sections 8-12-105 (3),
8-12-115 (4) (b) (II), and 8-12-116 (2).
(3) In case of an emergency the director may authorize or permit the employment
of any person for more hours per day or per week than the maximum now fixed by law.
(4) Overtime, at a rate of one and one-half times the regular rate of pay, may be
permitted by the director under conditions and rules and for increased minimum wages
which the director, after investigation, determines and prescribes by order and which shall
apply equally to all employers in such industry or occupation.
8-6-112. New determination of wages and conditions. Whenever a minimum
wage rate or a new standard of conditions of employment has been established in any
occupation, the director, if he deems proper or necessary so to do, upon petition of either
employers or employees, may reconvene the wage board or establish a new wage board,
and any recommendation made by such board shall be dealt with in the same manner as
the original recommendation of a wage board. Pending any new determination, any
minimum wage rate and any new standard of conditions of employment theretofore
established shall be and continue in force and effect. It is the duty of the director to survey
and review for adequacy established wage orders made pursuant to the provisions of
section 8-6-111 at least every four years, whether or not the director is petitioned to do so
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by either employers or employees.
8-6-113. Employment at less than minimum wage - license. (Repealed)
8-6-114. Wages and working conditions for minors. (Repealed)
8-6-115. Discrimination by employer - penalty - prosecutions. Any employer
who discharges or threatens to discharge, or in any other way discriminates against an
employee because such employee serves upon a wage board, or is active in its formation,
or has testified or is about to testify, or because the employer believes that the employee
may testify in any investigation or proceeding relative to enforcement of this article is
guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not
less than two hundred dollars nor more than one thousand dollars for each violation. The
director shall investigate and report to the proper prosecuting officials whether employers
in each occupation investigated are obeying his decrees, and the director or employees of
the division may cause informations to be filed with and prosecutions to be instituted by
the proper prosecuting officials for any violation of the provisions of this article.
8-6-116. Violation - penalty. The minimum wages fixed by the director, as
provided in this article, shall be the minimum wages paid to the employees, and the
payment to such employees of a wage less than the minimum so fixed is unlawful, and
every employer or other person who, individually or as an officer, agent, or employee of a
corporation or other person, pays or causes to be paid to any such employee a wage less
than the minimum is guilty of a misdemeanor and, upon conviction thereof, shall be
punished by a fine of not less than one hundred dollars nor more than five hundred
dollars, or by imprisonment in the county jail for not less than thirty days nor more than
one year, or by both such fine and imprisonment.
8-6-117. Minimum wage presumed reasonable - conclusiveness. In every
prosecution for the violation of any provision of this article, the minimum wage
established by the director shall be prima facie presumed to be reasonable and lawful and
the wage required to be paid. The findings of fact made by the director acting within
prescribed powers, in the absence of fraud, shall be conclusive.
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8-6-118. Recovery of balance of minimum wage. An employee receiving less
than the legal minimum wage applicable to such employee is entitled to recover in a civil
action the unpaid balance of the full amount of such minimum wage, together with costs
of suit, notwithstanding any agreement to work for a lesser wage.
8-6-119. Investigation of complaints. Any person may register with the division
a complaint that the wages paid to an employee for whom a rate has been established are
less than that rate, and the director shall investigate the matter and take all proceedings
necessary to enforce the payment of the minimum wage rate.
ARTICLE 7
Salaries of Employees in Mining
8-7-101 to 8-7-109. (Repealed)
ARTICLE 8
Truck System Abolished
8-8-101 to 8-8-109. (Repealed)
ARTICLE 9
Assignment of Wages
8-9-101. Assignment of wages - requirements. This article is subject to the
provisions of articles 2 and 3 of the "Uniform Consumer Credit Code". No assignment of
wages by any employee to any person for the benefit of such employee shall be valid or
enforceable. No employer or debtor shall recognize or honor any assignment of wages for
any purpose unless it is in writing and for a fixed and definite part of the wages earned or
to be earned within thirty days from the date of such assignment. Any assignment which
is postdated or dated on any other date than that of its actual execution, shall be void and
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of no effect for any purpose.
8-9-102. Copies to be given employer and assignor. No assignment of wages
shall be valid or enforceable unless a copy of the assignment is given or mailed by
registered mail to the employer within five days after its execution and a copy of the
assignment given to the wage earner making the assignment.
8-9-103. When assignment must be recorded. No assignment of wages not
already earned at the time of the assignment and no assignment of any other sum to
become due to the assignor shall be valid as against any creditor of the assignor who has
not had actual notice of the assignment at the time the same is made unless the same is
recorded with the recorder of the county wherein such wages are to be earned or such
sums are to become due within five days from date thereof.
8-9-104. Joinder of wife or husband in assignment - acknowledgment. No
assignment of wages, except for child support, not already earned at the time of the
assignment or any sum to become due the assignor after the date of such assignment shall
be valid unless, if the assignor is married and residing with his spouse, such spouse joins
in and signs such assignment and such assignment is duly acknowledged before a notary
public or some other officer authorized by the laws of Colorado to take
acknowledgments.
8-9-105. Burden of proof of validity on assignee. If any assignment of wages or
other sums to be earned or to become due after the date of such assignment is contested
by any creditor of the assignor, the burden of proof that the assignment was recorded as
provided in section 8-9-103 or that the creditor had actual notice of the assignment at the
time garnishee summons was issued and that the assignment was made in accordance
with the provisions of this article rests upon the assignee under the assignment.
8-9-106. Deductions for union dues. Nothing in this article shall prevent or
prohibit the use of the check-off between employers or employees in the custom or
practice of the deduction of union dues by an employer for his employees where such an
arrangement has been entered into between the parties.
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8-9-107. Other authorized deductions. (1) Nothing contained in this article
shall be construed to affect deductions authorized by an employee to be made by an
employer for hospital, medical, stock purchases, savings, insurance, charities, credit
unions, banks, savings and loans, or any other financial institution or other similar
purposes, or for rent, board, and subsistence provided in connection with employment, if
the authorization is revocable.
(2) Rent, board, and subsistence deductions as provided in subsection (1) of this
section shall not be made a condition of employment.
ARTICLE 10
Preferred Claims
8-10-101. Wages a preferred claim. When the business of any person,
corporation, company, or firm is suspended by the action of creditors or put into the hands
of a receiver or trustee, the debts owing to laborers, servants, or employees, which have
occurred by reason of their labor or employment shall be considered and treated as
preferred claims. Such laborers or employees shall be preferred creditors and shall first be
paid in full. If there are not sufficient funds to pay them in full, they shall be paid from
the proceeds of the sale of the property seized. Any person interested may contest any
such claim, or part thereof, by filing exceptions thereto, supported by affidavit, with the
officer having the custody of such property, and thereupon the claimant shall be required
to reduce his claim to judgment before a court having jurisdiction thereof before any part
thereof is paid.
8-10-102. Statement of claim presented. Any laborer, servant, or employee
desiring to enforce his claim for wages under this article shall present a statement under
oath showing the amount due, the kind of work for which the wages are due, and when
performed to the officer, person, or court charged with the property within twenty days
after the seizure thereof on any execution or writ of attachment or within sixty days after
same has been placed in the hands of any receiver or trustee, and thereupon it is the duty
of the person or court having or receiving such statement to pay the amount of the claim
to the person entitled thereto.
8-10-103. Payment - prorating - prior mortgage not impaired. No claim under
this article shall be paid until after the expiration of the time in which to present such
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claim. If the funds realized from the sale of the property seized are insufficient to pay the
total claims presented, such funds shall be prorated on such claims. The provisions of this
article shall not be construed to extend to creditors who held a duly recorded mortgage
upon the property attached which was given for a debt actually existing from such
mortgage before the labor was performed.
Labor Conditions
ARTICLE 11
Occupational Safety and Health
8-11-100.1 to 8-11-125. (Repealed)
ARTICLE 12
Colorado Youth Employment Opportunity Act
8-12-101. Short title. This article shall be known and may be cited as the
"Colorado Youth Employment Opportunity Act of 1971".
8-12-102. Legislative declaration. (1) It is the policy of this state to foster the
economic, social, and educational development of young people through employment.
Work is an integral factor in providing a sense of purpose, direction, and self-esteem
necessary to the overall physical and mental health of an individual. In the first part of
this century, state and federal laws and regulations were needed to prevent the
exploitation of child labor. Unfortunately, such legislation also has tended, on occasion,
to limit and curtail opportunities for minors to participate in reasonable work experiences.
Young people, especially those who have completed high school or occupational training
and no longer are in school, should not be denied employment opportunities because of
arbitrary minimum age limits. Work, however, should be coordinated with schooling
wherever appropriate. Work and study combined must be developed in the interest of the
youth to be trained.
(2) (a) The general assembly hereby finds and determines that certain issues
related to youth employment in Colorado have important statewide ramifications for the
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labor force in this state. In particular, the general assembly declares that the issue of
minimum wages, as it relates to youth employment in this state, is a matter of statewide
concern.
(b) No unit of local government, whether by acting through its governing body or
an initiative, a referendum, or any other process, shall enact any jurisdiction-wide law or
ordinance with respect to the minimum wages earned by young people unless otherwise
specifically authorized to do so by this article; except that a unit of local government may
enact such provisions with respect to its own employees.
8-12-103. Definitions. As used in this article, unless the context otherwise
requires:
(1) Repealed.
(2) "Director" means the director of the division of labor.
(3) "Division" means the division of labor in the department of labor and
employment.
(4) "Employment" means any occupation engaged in for compensation in money
or other valuable consideration, whether paid to the minor or to some other person,
including, but not limited to, occupation as a servant, agent, subagent, or independent
contractor.
(5) "Minor" means any person under the age of eighteen, except a person who has
received a high school diploma or a passing score on the general educational development
examination. The state board of education may administer the general educational
development examination to any minor seventeen years of age or older who wishes to be
considered an adult for the purpose of this article if such person is qualified to take the
examination under the standards established by the state board of education.
(6) "School day" means any day when normal classes are in session during the
regular school year in the school district.
(7) "School hours" means that period during which the student is expected to be in
school in the school district.
8-12-104. Exemptions. (1) The provisions of this article, except section 8-12110, shall not apply to the following:
(a) School work and supervised educational activities;
(b) Home chores;
(c) Work done for a parent or guardian, except where the parent or guardian
receives any payment therefor;
(d) Newsboys and newspaper carriers.
(2) Any minor employed as an actor, model, or performer shall be exempt from
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the provisions of subsection (1) of section 8-12-105.
(3) The director may grant exemptions from any provision of this article, except
for sections 8-12-113 and 8-12-114, for an individual minor if he finds that such an
exemption would be in the best interests of the minor involved. In granting exemptions,
the director shall consider, among other things, the previous training which the minor has
received in his proposed occupation and his knowledge of the proper safety measures to
be taken in connection with such occupation. The director may require any applicant for
an exemption from section 8-12-110 to submit to a test of his ability to perform the skills
required for the proposed occupation. Such tests may be administered by a community
and technical college, a private occupational school, or any other institution which offers
courses in the skills required, which courses are approved by either the state board for
community colleges and occupational education or the private occupational school
division.
(4) Any employer, minor, minor's parent or guardian, school official, or youth
employment specialist may request an exemption, as provided in subsection (3) of this
section, from a provision of this article.
8-12-105. Minimum age requirements - maximum hours of work. (1) No
minor under the age of fourteen shall be permitted employment in this state except as
authorized by sections 8-12-104, 8-12-106, and 8-12-107.
(2) On school days, during school hours, no minor under the age of sixteen shall
be permitted employment except as provided in section 8-12-113; and, after school hours,
no minor under the age of sixteen shall be permitted to work in excess of six hours unless
the next day is not a school day.
(3) Except for baby-sitters, no minor under the age of sixteen shall be permitted to
work between the hours of nine-thirty p.m. and five a.m., except as authorized by section
8-12-104 (2), unless the next day is not a school day.
(4) Except for the provisions of subsection (5) of this section, no employer shall
be permitted to work a minor more than forty hours in a week or more than eight hours in
any twenty-four-hour period. In case of emergencies which may arise in the conduct of an
industry or occupation (not subject to a wage order promulgated under article 6 of this
title) the director may authorize an employer to allow a minor to work more than eight
hours in a twenty-four-hour period. In such emergencies an employee shall be paid at a
rate of one and one-half times his time rate as determined in accordance with the
provisions of section 8-6-106 for each hour worked in excess of forty hours in a week.
(5) In seasonal employment for the culture, harvest, or care of perishable products
where wages are paid on a piece basis, as determined in accordance with the provisions of
section 8-6-106, a minor fourteen years of age or older may be permitted to work hours in
excess of the limitations of subsection (4) of this section; but in no case is he permitted to
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work more than twelve hours in any twenty-four-hour period nor more than thirty hours in
any seventy-two-hour period; except that a minor fourteen or fifteen years of age may
work more than eight hours per day on only ten days in any thirty-day period. Overtime
wage provisions of subsection (4) shall not apply to this subsection (5).
8-12-106. Permissible occupations at age nine or older. (1) Subject to the
limitations of sections 8-12-105 and 8-12-110, any minor at age nine or older shall be
permitted employment in any of the following nonhazardous occupations:
(a) Delivery of handbills, advertising, and advertising samples;
(b) Shoeshining;
(c) Gardening and care of lawns involving no power-driven lawn equipment;
(d) Cleaning of walks involving no power-driven snow-removal equipment;
(e) Casual work usual to the home of the employer and not specifically prohibited
in this article;
(f) Caddying on golf courses;
(g) Any other occupation which is similar to those enumerated in this subsection
(1) and is not specifically prohibited by this article.
8-12-107. Permissible occupations at age twelve or older. (1) Subject to the
limitations of sections 8-12-105 and 8-12-110, any minor at age twelve or older shall be
permitted employment in any of the following nonhazardous occupations:
(a) Sale and delivery of periodicals and door-to-door selling of merchandise and
the delivery thereof;
(b) Baby-sitting;
(c) Gardening and care of lawns, including the operation of power-driven lawn
equipment if such type of equipment is approved by the division or if the minor has
received training conducted or approved by the division in the operation of the
equipment;
(d) Cleaning of walks, including the operation of power-driven snow-removal
equipment;
(e) Agricultural work, except for that declared to be hazardous under the "Fair
Labor Standards Act of 1938", as amended. However, it is the intent of the general
assembly that migrant children eligible for attendance at migrant schools be encouraged
to attend such schools.
(f) Any other occupation which is similar to those enumerated in this subsection
(1) and is not specifically prohibited by this article.
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8-12-108. Permissible occupations at age fourteen. (1) In addition to the
occupations permitted by sections 8-12-106 and 8-12-107, and subject to the limitations
of sections 8-12-105 and 8-12-110, any minor fourteen years of age or older shall be
permitted employment in any of the following occupations:
(a) Nonhazardous occupations in manufacturing;
(b)
Public messenger service and errands by foot, bicycle, and public
transportation;
(c) Operation of automatic enclosed freight and passenger elevators;
(d) Janitorial and custodial service, including the operation of vacuum cleaners
and floor waxers;
(e) Office work and clerical work, including the operation of office equipment;
(f) Warehousing and storage, including unloading and loading of vehicles;
(g) Nonhazardous construction and nonhazardous repair work. The operation of
motor vehicles shall be subject to article 2 of title 42, C.R.S.
(h) Occupations in retail food service;
(i) Occupations in gasoline service establishments, including but not limited to
dispensing gasoline, oil, and other consumer items, courtesy service, car cleaning,
washing, and polishing, the use of hoists where supervised, and changing tires; except
that no minor may inflate or change any tire mounted on a rim equipped with a removable
retaining ring. The operation of motor vehicles shall be subject to article 2 of title 42,
C.R.S.
(j) Occupations in retail stores, including cashiering, selling, modeling, art work,
work in advertising departments, window trimming, price marking by hand or machine,
assembling orders, packing and shelving, or bagging and carrying out customers' orders;
(k) Occupations in restaurants, hotels, motels, or other public accommodations,
except the operation of power food slicers and grinders;
(l) Occupations related to parks or recreation, including but not limited to
recreation aides and conservation projects;
(m) Any other occupation which is similar to those enumerated in this subsection
(l) and not specifically prohibited by this article.
8-12-109. Permissible occupations at age sixteen. In addition to the occupations
permitted by sections 8-12-106 to 8-12-108 and subject to the limitations of sections 812-105 and 8-12-110, any minor sixteen years of age or older shall be permitted
employment in any occupation which involves the use of a motor vehicle if the minor is
licensed to operate the motor vehicle for such purpose pursuant to article 2 of title 42,
C.R.S.
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8-12-110. Hazardous occupations prohibited for minors. (1) No minor shall be
permitted employment in any occupation declared to be hazardous in subsection (2) of
this section unless such minor is fourteen years of age or older and he is employed:
(a) Incidental to or upon completion of a program of apprentice training;
(b) Incidental to or upon completion of a student-learner program of occupational
education under the auspices of a public school, junior college, community and technical
college, federally funded work-training program, or private occupational school approved
by the private occupational school division;
(c) Upon completion of any other program of training approved by the state board
for community colleges and occupational education; or
(d) Upon completion of a program of occupational education conducted outside
this state which the director determines offers instructional quality and content
comparable to that offered in programs certified by the state board for community
colleges and occupational education.
(2) The following occupations are declared to be hazardous:
(a) Operation of any high pressure steam boiler or high temperature water boiler;
(b) Work which primarily involves the risk of falling from any elevated place
located ten feet or more above the ground except that work defined as agricultural
involving elevations of twenty feet or less above ground;
(c) Manufacturing, transporting, or storing of explosives;
(d) Mining, logging, oil drilling, or quarrying;
(e) Any occupation involving exposure to radioactive substances or ionizing
radiation;
(f) Operation of the following power-driven machinery: Woodworking machines,
metal-forming machines, punching or shearing machines, bakery machines, paper
products machines, shears, and automatic pin-setting machines and any other powerdriven machinery which the director determines to be hazardous;
(g) Slaughter of livestock and rendering and packaging of meat;
(h) Occupations directly involved in the manufacture of brick or other clay
construction products or of silica refractory products;
(i) Wrecking or demolition, but not including manual auto wrecking;
(j) Roofing;
(k) Occupations in excavation operations.
(3) The director shall promulgate regulations, in accordance with section 24-4103, C.R.S., to define the occupations prohibited under this section and to prescribe what
types of equipment shall be required to make an occupation nonhazardous for minors.
8-12-111. Age certificates. (1) Any employer desiring proof of the age of any
minor employee or prospective employee may require the minor to submit an age
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certificate. Upon request of a minor, an age certificate shall be issued by or under the
authority of the school superintendent of the district or county in which the applicant
resides. The superintendents, principals, or headmasters of independent or parochial
schools shall issue age certificates to minors who attend such schools.
(2) The age certificate shall show the age of the minor, the date of his birth, the
date of issuance of the certificate, the name and position of the issuing officer, the name,
address, and description of the minor, and what evidence was accepted as proof of age.
The age certificate shall also show the school hours applicable and shall state that a
separate school release permit is required for minors under sixteen to work on regular
school days during such school hours. It shall be signed by the issuing officer and by the
minor in his presence.
(3) An age certificate shall not be issued unless the minor's birth certificate or a
photocopy or extract thereof is exhibited to the issuing officer, or unless such evidence
was previously examined by the school authorities and the information is shown on the
school records. If a birth certificate is not available, other documentary evidence such as a
baptismal certificate or a passport may be accepted. If such evidence is not available, the
parent or guardian shall appear with the minor and shall make an oath before the judge or
other officer of the juvenile or county court as to the age of the minor.
(4) The employer shall keep an age certificate received by him for the duration of
the minor's employment and shall keep on file all age certificates where they may be
readily examined by an agent of the division. Upon termination of employment and upon
request, the certificate shall be returned to the minor.
8-12-112. Proof of high school diploma, passing score on general educational
development examination, or completion of vocational education program. Any
employer may require proof of a high school diploma, a passing score on the general
educational development examination, or completion of a vocational education program.
The employer shall be required to maintain a record of such high school diploma, proof of
a passing score on the general educational development examination, or completion of a
vocational education program.
8-12-113. School release permit. (1) Any minor fourteen or fifteen years of age
who wishes to work on school days during school hours shall first secure a school release
permit. The permit shall be issued only by the school district superintendent, his agent, or
some other person designated by the board of education. The school release permit shall
be issued only for a specific position with a designated employer. The permit shall be for
a specific length of time not to exceed thirty days. The permit shall be cancelled upon the
termination of such employment and shall be issued only in the following circumstances:
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(a) If the minor is to be employed in an occupation not prohibited by section 8-12110 and as evidence thereof presents a signed statement from his prospective employer;
and
(b) If the parent or guardian of the minor consents to the employment; and
(c) If the issuing officer believes the best interests of the minor will be served by
permitting him to work.
(2) The school release permit shall show the name, address, and description of the
minor, the name and address of the employer, the kind of work to be performed, and the
hours of exemption and shall also require the signature of the parent and the minor in the
presence of the issuing officer.
(3) Inasmuch as it is desirable and practical to encourage school attendance by
minors at least part time, no school release permit shall be issued under this section unless
limited to require class attendance by the minor for at least three class hours each regular
school day; except that, in cases of extreme hardship, class attendance may be waived if
the issuing officer determines that such action would be in the best interest of the minor.
(4) If the issuing officer is in doubt about whether the proposed employment is in
accordance with this article, he shall consult with the division before issuing the permit.
(5) Upon termination for any reason of the employment authorized, the employer
shall return the school release permit directly to the issuing officer with a notation
showing the date of termination.
(6) The issuing officer is authorized to cancel a school release permit if the issuing
officer determines that the action would be in the best interest of the minor. If a school
release permit is cancelled, for reasons other than the termination of employment for
which the permit was granted, the minor shall be entitled to a review of the cancellation
by the court having jurisdiction of juvenile matters in the county in which the minor
resides, in accordance with the procedures established by section 8-12-114.
8-12-114. Appeal from denial or cancellation of school release permit procedure. (1) If a minor is refused a school release permit or has had a school release
permit cancelled for reasons other than the termination of employment for which the
permit was granted, he shall be entitled to review by the court having jurisdiction of
juvenile matters in the county in which the minor resides, in accordance with the
procedures described in this section.
(2) The official who refused to issue or cancelled the school release permit shall,
upon demand made within five days after the refusal or cancellation, promptly furnish the
minor and his parent or guardian with a written statement of the reasons for such refusal
or cancellation.
(3) Within five days after the receipt of such statement, the minor and his parent
or guardian may petition the court for an order directing the issuance or reissuance of a
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school release permit. The petition shall state the reasons why the court should issue such
an order, and the petitioner shall attach to such petition the statement of the issuing
officer obtained as provided in subsection (2) of this section.
(4) The court shall hold a hearing and receive such further testimony and evidence
as it deems necessary. If the court finds that the issuance or reissuance of a permit is in
the best interest of the minor, it shall grant the petition.
(5) No fee shall be charged by the court in such proceedings.
8-12-115. Director of division of labor - powers and duties - rules and
regulations. (1) The director shall enforce the provisions of this article.
(2) The director shall take the necessary steps to inform employers, school
authorities, and the general public regarding the provisions of this article, and he shall
work with other public and private agencies to minimize the obstacles to legitimate
employment of minors.
(3) The director shall receive and investigate complaints and may from time to
time visit employers at reasonable times and inspect pertinent records to determine
compliance with this article.
(4) (a) If investigation of any place of employment or complaint discloses a
violation of this article, except section 8-12-105 (3), the director shall give the employer
written notice describing the violation and specifying the provisions of this article that
such employer is allegedly violating. Within ten days of receipt of such notice of
violation, the employer may file a written request for a hearing on the issue of whether the
violation exists, which hearing shall be conducted in accordance with section 24-4-105,
C.R.S. After a hearing concerning a violation of this article, or after the expiration of
twenty days after the issuance of a notice of violation during which the employer has
neither requested a hearing nor ceased the conduct that constitutes the alleged violation,
the director may issue a final order requiring the employer to cease and desist the conduct
found to be in violation. At any time thereafter, the director may order the violating
employer to pay a penalty of twenty dollars for each offense. Each day that the conduct
constituting the violation is continued after the order is made final, and each minor
employed in violation of this article, constitutes a separate offense. The order imposing
the penalty shall become final upon issuance, and the penalty shall be due and payable
thirty days after the order assessing the penalty is entered, unless prior to that time the
order has been modified or a hearing on the penalty has been requested as provided by
section 24-4-105, C.R.S. All penalties imposed by this section shall be collected as
provided in section 8-1-142.
(b) (I) If investigation of any place of employment or complaint discloses a
violation of section 8-12-105 (3), the director shall give the employer written notice
describing the violation and specifying the provisions of this article that such employer is
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allegedly violating. Within ten days after receipt of such notice of violation, the employer
may file a written request for a hearing on the issue of whether the violation exists, which
hearing shall be conducted in accordance with section 24-4-105, C.R.S. After a hearing
concerning a violation of section 8-12-105 (3), or after the expiration of twenty days after
the issuance of a notice of violation during which the employer has neither requested a
hearing nor ceased the conduct which constitutes the alleged violation, the director may
issue a final order requiring the employer to cease and desist the conduct found to be in
violation. At any time thereafter, the director may order the violating employer to pay a
penalty pursuant to subparagraph (II) of this paragraph (b). The order imposing the
penalty shall become final upon issuance, and the penalty shall be due and payable thirty
days after the order assessing the penalty is entered, unless prior to that time the order has
been modified or a hearing on the penalty has been requested as provided by section 24-4105, C.R.S. All penalties imposed by this section shall be collected as provided in section
8-1-142.
(II) Failure to comply with the provisions of this paragraph (b) shall make the
offender liable for administrative fines pursuant to the following penalty schedule:
(A) For a first offense, by a fine of not less than two hundred dollars nor more
than five hundred dollars;
(B) For a second offense within six months after the first offense, by a fine of not
less than five hundred dollars nor more than one thousand dollars;
(C) For a third or subsequent offense within six months after the first offense, by a
fine of not less than one thousand dollars nor more than ten thousand dollars.
(5) The findings, orders, and penalties made by the director shall be subject to
judicial review pursuant to section 24-4-106, C.R.S.
(6) The director may apply for an injunction in any court of competent jurisdiction
to enjoin any person from committing any act prohibited by this article.
(7) The director, in accordance with section 24-4-103, C.R.S., shall promulgate
rules and regulations more specifically defining the occupations and types of equipment
permitted or prohibited by this article.
8-12-116. Penalty for violations. (1) Any person, having legal responsibility for
a minor under the age of eighteen years, who knowingly permits such minor to be
employed in violation of this article, is guilty of a misdemeanor and, upon conviction
thereof, shall be punished by a fine of not less than twenty dollars nor more than one
hundred dollars for each offense.
(2) Any person, firm, or corporation, or any agent, manager, superintendent, or
foreman of any firm or corporation, who, by himself or through an agent, subagent,
foreman, superintendent, or manager, knowingly violates or knowingly fails to comply
with any of the provisions of this article is guilty of a misdemeanor and, upon conviction
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thereof, shall be punished by a fine of not less than twenty dollars nor more than one
hundred dollars for each offense. Upon conviction of a second or subsequent offense,
such person shall be punished by a fine of not less than one hundred dollars nor more than
five hundred dollars, or by imprisonment in the county jail for not longer than ninety
days, or by both such fine and imprisonment.
8-12-117. Minors covered by workers' compensation. All minors, whether
lawfully or unlawfully employed, shall be subject to the rights and remedies of the
"Workers' Compensation Act of Colorado", articles 40 to 47 of this title, if the employer
is included within the meaning of section 8-40-203.
ARTICLE 13
Eight-hour Day
8-13-101. Employment declared dangerous. Employment in all underground
mines, underground workings, and smelters is declared to be injurious to health and
dangerous to life and limb.
8-13-102. Eight-hour day - exceptions. (1) The period of employment of
persons working in all underground mines, underground workings, and smelters may
exceed eight hours within a twenty-four-hour period upon the following conditions:
(a) The operator of the underground mine, underground workings, or smelter
establishes a work plan setting forth the terms and conditions under which the period of
employment may exceed eight hours in a twenty-four-hour period; and
(b) The operator provides reasonable notice to its employees, except in cases of
emergency or upset conditions, of proposed increases in the regular work schedule which
would result in a period of employment in excess of eight hours in a twenty-four-hour
period. Reasonable notice shall be construed to be not less than one week, during which
time affected employees may comment.
(2) Nothing in this section shall be construed so as to alter the provisions of any
collective bargaining agreement.
8-13-102.1. Period of employment - relation to conservation of fuel. (1) The
general assembly hereby finds and declares that in order to give full effect to state
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programs for the conservation of fuel and not to impede or prevent the execution of any
fuel conservation powers the governor may impose pursuant to part 3 of article 20 of title
24, C.R.S., it is necessary to enact this section. The general assembly further finds and
declares that it is necessary to enact this section in order for certain industries to support
and cooperate with such state programs and powers and to assist their employees in the
conservation of fuel by providing opportunity for certain employers to establish four-day
workweeks thereby omitting one day of travel to and from work for employees.
(2) For purposes of section 8-13-102, "period of employment" means time spent
which is directly related to an employee's performance of his primary job duties. "Period
of employment" does not include time spent, whether or not compensation is paid, which
is not directly related to the employee's performance of his primary job duties, including,
but not limited to, meal periods, travel time, rest periods, and waiting time.
8-13-103. Penalty for violation. Any person, body corporate, general manager, or
employer who violates or causes to be violated any of the provisions of sections 8-13-101
and 8-13-102 is guilty of a misdemeanor and, upon conviction thereof, shall be punished
by a fine of not less than two hundred fifty dollars nor more than five hundred dollars, or
by imprisonment in the county jail for not less than ninety days nor more than six months,
or by both such fine and imprisonment. Each day in violation of the provisions of sections
8-13-101 and 8-13-102 shall constitute a separate offense.
8-13-104. Eight-hour day for public employees. (Repealed)
8-13-105. Emergency cases. (Repealed)
8-13-106. Penalty for violation. (Repealed)
8-13-107. Firemen - hours of duty. It is unlawful for any municipality, or any
officer or employee thereof, to require any person holding any position or employment in
the fire department of such municipality, except one who may be at any time in command
of the department, to be or remain on duty in such employment during any calendar
month for periods of time which in the aggregate during such month amount to more than
twelve hours for each day in said month. The requiring of more hours of work in cases of
conflagrations or similar emergencies shall not be unlawful. This section shall apply to all
municipalities having fire departments, whether such municipalities are created under
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general laws, or by special charter, or by or under the provisions of article XX of the
constitution of the state of Colorado.
8-13-108. Penalty for violation. Any officer, agent, or employee of any
municipality who orders, directs, compels, or requires any employee or other person in
any such fire department, except one who may be at any time in command of the fire
department, to be or remain on duty in such work or employment in any calendar month
for a longer time than that provided for in section 8-13-107 except in cases of emergency,
is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of
not less than one hundred dollars nor more than five hundred dollars, or by imprisonment
in the county jail for not more than one hundred days, or by both such fine and
imprisonment.
8-13-109. Employment in cement and plaster factories injurious. (Repealed)
8-13-110. Overtime not mandatory. Nothing in this article shall be construed to
mandate overtime for employees in and about cement manufacturing plants and plaster
manufacturing plants unless otherwise negotiated by contract.
8-13-111. Penalty for violation. (Repealed)
ARTICLE 13.3
Leave From Work
PART 1
PARENTAL INVOLVEMENT
8-13.3-101. Short title. This article shall be known and may be cited as the
"Parental Involvement in K-12 Education Act".
8-13.3-102. Definitions. As used in this article, unless the context otherwise
requires:
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(1) "Academic activity" means the following meetings or conferences regarding
the employee's child or any child for whom the employee has primary legal responsibility:
(a) A parent-teacher conference; or
(b) A meeting related to: Special education services, as defined in section 22-20103, C.R.S.; response to intervention, as defined in section 22-2-133 (4) (b), C.R.S.;
dropout prevention; attendance; truancy; or disciplinary issues.
(2) "Academic year" means the period, not to exceed twelve consecutive months,
allotted by a school for the completion of one grade level of study.
(3) (a) "Employee" means any person working for another for hire in the state of
Colorado in a nonexecutive or nonsupervisory capacity 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 pursuant to section 22-33-104.5, C.R.S., in Colorado in any grade
from kindergarten through twelfth grade.
(b) "Employee" does not include independent contractors, domestic servants
employed in and about private homes, seasonal workers, or farm and ranch laborers.
(4) "Employer" means an employer, as defined in the federal "Family and Medical
Leave Act of 1993", Pub.L. 103-3, as amended.
8-13.3-103. Leave for involvement in academic activities. (1) (a) An employee
employed by an employer is entitled to take leave, not to exceed six hours in any onemonth period and not to exceed eighteen hours in any academic year, for the purpose of
attending an academic activity for or with the employee's child. In the alternative, an
employer and employee may agree to an arrangement allowing the employee to take paid
leave to attend an academic activity and to work the amount of hours of paid leave taken
within the same work week.
(b) An employee who works less than a full-time schedule shall be eligible for a
portion of the leave specified in paragraph (a) of this subsection (1) based on the percent
of a full-time schedule the employee works.
(c) Notwithstanding paragraph (a) of this subsection (1), an employer may limit
the ability of an employee to take leave pursuant to this section 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.
(2) An employer may require that the leave be taken in no longer than three-hour
increments and that the employee provide written verification from the school or school
district of the academic activity.
(3) An employee shall make a reasonable attempt to schedule academic activities
for which leave may be taken under this section outside of regular work hours. In
scheduling academic activities for which leave may be taken, schools and school districts
shall make their best efforts to accommodate the schedules of employees with children in
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the school or school district.
(4) In order to take leave under this section, an employee shall provide the
employer with notice of the need for leave at least one calendar week in advance of the
academic activity, and the notice shall include the written verification specified in
subsection (2) of this section if required by the employer. In the case of an emergency
where the employee is not aware of the need for the leave one calendar week in advance,
the employee shall provide the employer with notice of the leave as soon as possible once
he or she becomes aware of the need for the leave and shall provide the employer with
written verification, as described in subsection (2) of this section, upon return to work.
(5) Nothing in this section requires that parental leave be paid leave, nor shall this
section be construed to prohibit an employer from providing its employees with leave
provisions or leave benefits that are greater than the requirements for leave as described
in this section.
(6) An employee or employer may elect to substitute accrued paid vacation leave,
sick leave, personal leave, or other paid leave for unpaid leave provided pursuant to this
section, and the employer shall allow the employee to use such accrued paid leave for the
same purposes as, and with notice requirements no more stringent than, those applicable
to leave under this article.
(7) An employer may satisfy the requirements of this section, and shall not be
required to provide additional leave to its employees, if the employer:
(a) Makes available to its employees an amount of paid or unpaid leave, including
vacation leave, sick leave, or personal leave, sufficient to meet the requirements of this
section; and
(b) Allows its employees to use the leave for the same purposes as, and with
notice requirements no more stringent than, those applicable to leave under this article.
8-13.3-104. Repeal. This article is repealed, effective September 1, 2015.
PART 2
FAMILY AND MEDICAL LEAVE ELIGIBILITY
8-13.3-201. Short title. This part 2 shall be known and may be cited as the
"Family Care Act".
8-13.3-202. Definitions. As used in this part 2, unless the context otherwise
requires:
(1) "Civil union" has the same meaning as set forth in section 14-15-103 (1),
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C.R.S.
(2) "Employee" means a person employed by an employer and who is eligible for
FMLA leave.
(3) "Employer" has the same meaning as set forth in the FMLA.
(4) "FMLA" means the federal "Family and Medical Leave Act of 1993", Pub.L.
103-3, as amended, 29 U.S.C. sec. 2601, et seq.
(5) "FMLA leave" means leave from work and all benefits authorized by the
FMLA.
8-13.3-203. Family and medical leave - state requirements. (1) In addition to
the leave to which an employee is entitled under the FMLA, an employee in this state is
entitled to FMLA leave to care for a person who has a serious health condition, as that
term is defined in the FMLA, if the person:
(a) Is the employee's partner in a civil union, as defined in section 14-15-103 (5),
C.R.S.; or
(b) Is the employee's domestic partner and:
(I) Has registered the domestic partnership with the municipality in which the
person resides or with the state, if applicable; or
(II) Is recognized by the employer as the employee's domestic partner.
(2) (a) For purposes of confirming an employee's relationship to a person
described in subsection (1) of this section for whom the employee is requesting FMLA
leave, the employer may require the employee to provide reasonable documentation or a
written statement of family relationship, in accordance with the FMLA.
(b) An employer may require an employee seeking FMLA leave for a person
described in subsection (1) of this section to submit the same certification as the employer
may require under the FMLA.
(3) FMLA leave taken by an employee pursuant to this section runs concurrently
with leave taken under the FMLA, and this section does not:
(a) Increase the total amount of leave to which an employee is entitled during a
twelve-month period under the FMLA, this section, or both; and
(b) Preclude an employer from granting an employee an amount of leave that
exceeds the total amount of leave to which the employee is entitled during a twelvemonth period under the FMLA.
8-13.3-204. Enforcement. If an employer denies an employee in this state FMLA
leave to care for a person described in section 8-13.3-203 who is not a person for whom
the employee would be entitled to leave under the FMLA, or interferes with an
employee's exercise of or attempt to exercise his or her right to FMLA leave for persons
described in section 8-13.3-203, the employer is subject to damages and equitable relief
as specified in the FMLA. An aggrieved employee may bring an action in state court
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against the employer to recover damages or equitable relief.
8-13.3-205. Repeal of part. This part 2 is repealed if the United States congress
enacts and the president signs federal legislation amending the FMLA to permit
employees to use FMLA leave for all persons described in section 8-13.3-203. The
executive director of the department of labor and employment shall notify the revisor of
statutes, in writing, if the condition specified in this section occurs.
ARTICLE 13.5
Workplace Accommodations for Nursing Mothers
8-13.5-101. Short title. This article shall be known and may be cited as the
"Workplace Accommodations for Nursing Mothers Act".
8-13.5-102. Legislative declaration. (1) The general assembly hereby finds,
determines, and declares that:
(a) The American academy of pediatrics recommends breastfeeding exclusively
for the first six months of an infant's life and has continuously endorsed breastfeeding for
at least one year or longer as the optimal form of nutrition for infants and as a foundation
for good feeding practices;
(b) Extensive research indicates that there are diverse and compelling advantages
to nursing for infants, mothers, families, businesses, and society, including less illness
among children who are nursed and lower health care costs;
(c) Epidemiologic research shows that breastfeeding infants provides benefits to
their general health, growth, and development and results in significant decreases in risk
for numerous acute illnesses;
(d) Breastfeeding has been shown to have numerous health benefits for mothers,
including an earlier return to prepregnant weight, delayed resumption of ovulation with
increased child spacing, improved bone remineralization postpartum with reduction in hip
fractures in the postmenopausal period, and reduced risk of ovarian cancer and
premenopausal breast cancer;
(e) In addition to individual health benefits, providing opportunities for
breastfeeding results in substantial benefits to employers, including reduced health care
costs, reduced employee absenteeism for care attributable to infant illness, improved
employee productivity, higher morale and greater loyalty, improved ability to attract and
retain valuable employees, and a family-friendly image in the community;
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(f) Nursing is a basic, normal, and important act of nurturing that should be
encouraged in the interests of maternal and infant health.
(2) The general assembly further declares that the purpose of this article is for the
state of Colorado to become involved in the national movement to recognize the medical
importance of breastfeeding, within the scope of complete pediatric care, and to
encourage removal of boundaries placed on nursing mothers in the workplace.
8-13.5-103. Definitions. As used in this article, unless the context otherwise
requires:
(1) "Employer" means a person engaged in business who has one or more
employees. "Employer" includes the state and any political subdivision of the state.
(2) "Reasonable efforts" means any effort that would not impose an undue
hardship on the operation of the employer's business.
(3) "Undue hardship" means any action that requires significant difficulty or
expense when considered in relation to factors such as the size of the business, the
financial resources of the business, or the nature and structure of its operation, including
consideration of the special circumstances of public safety.
8-13.5-104. Right of nursing mothers to express breast milk in workplace private location - discrimination prohibited. (1) An employer shall provide reasonable
unpaid break time or permit an employee to use paid break time, meal time, or both, each
day to allow the employee to express breast milk for her nursing child for up to two years
after the child's birth.
(2) The employer shall make reasonable efforts to provide a room or other
location in close proximity to the work area, other than a toilet stall, where an employee
can express breast milk in privacy.
(3) An employer that makes reasonable efforts to accommodate an employee who
chooses to express breast milk in the workplace shall be deemed to be in compliance with
the requirements of this section.
(4) The department of labor and employment shall provide, on its web site,
information and links to other web sites where employers can access information
regarding methods to accommodate nursing mothers in the workplace. The department
shall consult with appropriate organizations or associations to determine the appropriate
information and web site links to provide on the department's web site so as to provide
employers with the most accurate and useful information available.
(5) Before an employee may seek litigation for a violation of this section, there
shall be nonbinding mediation between the employer and the employee.
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ARTICLE 14
Protection of Building Employees
8-14-101. Protection of building employees. A person employing or directing
another to perform labor of any kind in the erection, repairing, altering, or painting of a
house, building, or structure shall not furnish or erect for the performance of such labor
scaffolding, hoists, stays, ladders, or other mechanical contrivances which are unsafe,
unsuitable, or improper and which are not constructed, placed, and operated to give
proper protection to life and limb of a person so employed or engaged. Scaffolding or
staging swung or suspended from an overhead support more than twenty feet from the
ground or floor shall have a safety rail of wood, properly bolted, secured, and braced,
rising at least thirty-four inches above the floor or main portions of the scaffolding or
staging and extending along the entire length of the outside and the ends thereof and
properly attached thereto, and such scaffolding or staging shall be so fastened to prevent
the same from swaying from the building or structure.
8-14-102. Scaffolding - complaints - duty of building inspector. (1) Whenever
complaint is made to the building inspector of any town or city wherein work is being
done that the scaffolding or the slings, hangers, blocks, pulleys, stays, braces, ladders, or
ropes of any swinging or stationary scaffolding used in the construction, alteration,
repairing, painting, cleaning, or pointing of buildings within the limits of such city are
unsafe or liable to prove dangerous to the life or limb of any person, the building
inspector shall immediately cause an inspection to be made of the scaffolding or the
slings, hangers, blocks, pulleys, stays, braces, ladders, irons, or other parts connected
therewith. If, after examination, the scaffolding or any of the parts are found to be
dangerous to life or limb, the building inspector shall prohibit the use thereof and require
the same to be altered and reconstructed to avoid such danger. The building inspector
making the examination shall attach a certificate to the scaffolding or the slings, hangers,
irons, ropes, or other parts thereof examined by him stating that he has made an
examination and that he has found it safe or unsafe, as the case may be. If he declares it
unsafe, he shall notify the person responsible for its erection of the fact at once, in
writing, and warn him against the use thereof. Such notice may be served personally upon
the person responsible for its erection or by affixing it conspicuously to the scaffolding or
the part thereof declared to be unsafe. After the notice has been so served or affixed, the
person responsible therefor shall immediately remove the scaffolding or part thereof or
alter or strengthen it in such manner as to render it safe, in the discretion of the officer
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who has examined it.
(2) The building inspector, whose duty it is to examine or test any scaffolding or
part thereof as required by this section, shall have free access at all reasonable hours to
any building or premises containing scaffolding or where it is in use. All swinging or
stationary scaffolding shall be so constructed as to bear four times the maximum weight
required to be dependent therefrom or placed thereon when in use, and not more than four
men shall be allowed on any swinging scaffolding at one time.
8-14-103. Flooring - hoisting of materials - regulations. (1) All contractors and
owners, when constructing buildings in cities where the plans and specifications require
the floors to be arched between the beams thereof or where the floors or filling in
between the floors are of fireproof material or brick work, shall complete the flooring or
filling in as the building progresses to not less than within three tiers of beams below that
on which the iron work is being erected. If the plans and the specifications of the
buildings do not require filling in between the beams of floors with brick or fireproof
material, all contractors for carpenter work in the course of construction shall lay the
underflooring thereof on each story as the building progresses to not less than within two
stories below the one to which the building has been erected.
(2) Where double floors are not to be used, the contractor shall keep the floor
planked over not less than two stories below the story where the work is being performed.
If the floor beams are of iron or steel, the contractor for the iron or steel work of building
in course of construction, or the owners of such building, shall thoroughly plank over the
entire tier of iron or steel beams on which the structural iron or steel work is being erected
except such spaces as may be reasonably required for the proper construction of such iron
or steel work and for the raising or lowering of materials to be used in the construction of
the building or such spaces as may be designated by the plans and specifications for
stairways and elevator shafts. If elevators, elevating machines, or hod-hoisting apparatus
are used within a building in the course of construction for the purpose of lifting materials
to be used in the construction, the contractors or owners shall cause the shafts or openings
in each floor to be enclosed or fenced in on all sides by a barrier at least eight feet in
height; except on two sides, which may be used for taking off and putting on materials,
and those sides shall be guarded by an adjustable barrier not less than three nor more than
four feet from the floor and not less than two feet from the edge of the shaft or opening. If
a building in course of construction is five stories or more in height, no lumber or timber
needed for such construction shall be hoisted or lifted on the outside of the building.
8-14-104. Building inspector to enforce - prosecutions. The building inspector
shall enforce all the provisions of this article. He shall investigate complaints made to him
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of violations of such provisions, and, if he finds that such complaints are well-founded,
he shall issue an order directed to the person or corporation complained of requiring such
person or corporation to comply with those provisions. If such order is disregarded, the
building inspector shall present to the district attorney of the proper county all the facts
ascertained by him in regard to the alleged violation and all other papers, documents, or
evidence pertaining thereto which he has in his possession. The district attorney to whom
such presentation is made shall proceed at once to prosecute the person or corporation for
the violations complained of.
8-14-105.
Penalty for violation. Any person, corporation, company, or
association who violates any of the provisions of this article is guilty of a misdemeanor
and, upon conviction thereof, shall be fined in a sum of not less than fifty dollars nor
more than five hundred dollars for each offense.
Workers' Compensation Cost Containment
ARTICLE 14.5
Cost Containment
8-14.5-101. Short title. This article shall be known and may be cited as the
"Workers' Compensation Cost Containment Act".
8-14.5-102. Legislative declaration. The general assembly hereby finds and
declares that any adjustments to premiums for workers' compensation insurance be
granted on the basis of equity, rate adequacy, fairness, and insurer compliance with
Colorado insurance rating laws. The general assembly further finds and declares that
notwithstanding the granting of different rates to insureds for their experience
modification, participation in return-to-work programs, and premium volume discounts
not exceeding fifteen percent, any other premium adjustments should be principally
weighted in a manner primarily encouraging the adoption and successful implementation
by insureds of effective workplace safety programs mainly encompassing risk
management and medical cost containment procedures.
8-14.5-103. Definitions. As used in this article, unless the context otherwise
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requires:
(1) "Approved program" means a cost containment or risk management program
approved by the board.
(2) "Board" means the workers' compensation cost containment board established
pursuant to section 8-14.5-104.
(3) "Certified program" means a cost containment or risk management program
which has been implemented for a period of at least one year and certified by the board.
(3.5) "Commissioner" means the insurance commissioner, appointed pursuant to
section 10-1-104, C.R.S.
(4) "Department" means the department of labor and employment.
(5) "Director" means the director of the division.
(6) "Division" means the division of workers' compensation in the department of
labor and employment.
(7) "High risk employer" means any employer classified in the upper ten percent
of the insurance rate schedule in the Colorado workers' compensation insurance system.
(8) "Managed care" shall have the meaning set forth in section 8-42-101 (3.6) (p)
(I) (B).
(9) "Workplace safety program" means those programs offered by insurance
carriers authorized to do business in this state for purposes of workers' compensation
insurance policies and implemented by employers to promote cost containment and risk
management of workplace safety hazards.
8-14.5-104. Creation of board. (1) There is hereby created in the division the
workers' compensation cost containment board, to be composed of seven members: The
commissioner of insurance, the chief executive officer of Pinnacol Assurance, and five
members appointed by the governor and confirmed by the senate. Appointed members of
the board shall be chosen among the following: Employers or their designated
representatives engaged in businesses having workers' compensation insurance rates in
the upper five percent of the rate schedule, actuaries or executives with risk management
experience in the insurance industry, or employers who have demonstrated good risk
management experience with respect to their workers' compensation insurance.
(2) The board shall exercise its powers and perform its functions under the
department and the director of the division as if the same were transferred to the
department by a type 2 transfer, as such transfer is defined in the "Administrative
Organization Act of 1968", article 1 of title 24, C.R.S.
(3) The appointed members of the board shall serve for terms of three years and
may be reappointed; except that, of the members first appointed, two shall serve for terms
of three years; two shall serve for terms of two years, and one shall serve for a term of
one year. The chief executive officer of Pinnacol Assurance and the commissioner of
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insurance shall serve continuously.
(4) Members of the board shall receive no compensation but shall be reimbursed
for actual and necessary traveling and subsistence expenses incurred in the performance
of their official duties as members of the board.
8-14.5-105. Powers and duties of board. (1) The board shall have the following
powers and duties:
(a) To establish model cost containment and risk management programs for
selected classifications in the upper ten percent of the insurance rate schedule under the
Colorado workers' compensation insurance program;
(b) To adopt standards for the approval of particular cost containment and risk
management programs submitted by community, technical, or junior colleges or by
employers in those selected high risk classifications;
(c) To receive, evaluate, and certify cost containment and risk management
programs implemented by community, technical, or junior colleges or by employers in
those selected high risk classifications for a period of at least one year;
(d) To promote cost containment and risk management training by community,
technical, or junior colleges, employers, groups of employers, or trade associations;
(e) To review annually the classifications in the upper ten percent of the insurance
rate schedule under the Colorado workers' compensation insurance program for inclusion
in the cost containment program;
(f) To set the qualifications for technical personnel to assist community, technical,
and junior colleges and employers in establishing risk management and cost containment
programs;
(g) To disseminate information regarding the types of workers' compensation
insurance policies available;
(h) To adopt such rules and regulations as may be necessary to carry out the
purposes of this article.
8-14.5-106. Duties of director. (1) The director shall have the following powers
and duties:
(a) To provide technical advice to the board;
(b) To provide technical advice and assistance to community, technical, or junior
colleges, employers, groups of employers, or trade associations with respect to the
development and implementation of cost containment and risk management programs;
(c) To publish, as may be appropriate, documents relating to the development and
implementation of cost containment and risk management programs;
(d) To maintain records of all proceedings of the board, including the evaluation
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of proposals for cost containment and risk management programs submitted by employers
and by community, technical, or junior colleges;
(e) To maintain records of all employers and community, technical, or junior
colleges with certified programs.
8-14.5-107. Cost containment certification. Any employer complying with an
approved program for at least one year may present evidence of such compliance to the
board and petition the board to certify its program. The names of such certified employers
shall be made available on a periodic basis to bona fide insurance carriers on file with the
division.
8-14.5-107.5. Workplace safety programs - study by commissioner. (1) The
commissioner shall undertake a full study of current workplace safety, risk management,
and cost containment programs offered by insurers, including Pinnacol Assurance, a
review and analysis of the various incentives used by insurers to obtain policyholder
participation, including any premium adjustment programs in use, and shall evaluate other
possible programs and incentives that could be used by insurers to expand workplace
safety programs and reward policyholder participation. The commissioner shall consult
with the Colorado department of labor and employment in conducting the study. Such
study, review and analysis, and evaluation shall include but not be limited to the
following:
(a) Whether or not by a date certain, all insurers including Pinnacol Assurance
issuing workers' compensation insurance policies in this state shall offer all insureds in
the ten most populous counties a managed care plan featuring a designated medical
provider;
(b) Whether or not by a date certain, if it is in the best interest of employers and
employees, all insurers including Pinnacol Assurance issuing workers' compensation
insurance policies in this state shall offer to all or some selected classes of insureds some
type of basic workplace safety program;
(c) Whether or not the board or the commissioner should continue providing
certification of workplace safety programs or whether such certification should be
provided by insurers for insureds;
(d) Whether or not by July 1, 1995, the commissioner should promulgate
regulations concerning the granting of premium adjustments for an insured's participation
and implementation of a basic workplace safety program or managed care program;
(e) The participation by insureds in existing workplace safety programs offered by
insurers and the methods by which insurers offer such programs;
(f) Insurer compliance with deductible provisions;
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(g) Insurer compliance with the provisions of part 4 of article 4 of title 10, C.R.S.,
regarding the current design and use of any premium adjustment, rate deviation, premium
discount, retro-rate, scheduled adjustment, or other type of financial plan and their effect
on the fairness and reasonableness of rates for those insureds not qualifying for
experience or schedule rating;
(h) The efficacy of reducing the premium dollar volume needed for an insured to
become experience rated;
(i) A cost benefit analysis of implementation of workplace safety programs.
(2) (a) Repealed.
(b) Insurers shall make all necessary information and records pertaining to
workplace safety programs of such insurers available to the commissioner in carrying out
the study required by subsection (1) of this section. The reasonable costs of such study
shall be borne by insurers, including Pinnacol Assurance, as determined by the
commissioner based on the total cost of such study.
8-14.5-108. Cost containment fund - creation. All moneys collected for cost
containment pursuant to section 8-14.5-109 or 8-44-112 (1) (b) (III) shall be transmitted
to the state treasurer who shall credit the same to the cost containment fund, which fund is
hereby created. All moneys credited to said fund and all interest earned thereon shall be
subject to appropriation by the general assembly to pay the direct and indirect costs of the
cost containment program, and said moneys shall remain in such fund for such purposes
and shall not revert to the general fund or any other fund.
8-14.5-109. Grants-in-aid - cooperative agreements. The division may receive
grants-in-aid from any agency of the United States and may cooperate and enter into
agreements with any agency of the United States, any agency of any other state, and any
other agency of this state or its political subdivisions, for the purpose of carrying out the
provisions of this article.
8-14.5-110. Repeal of article. (Repealed)
Apprenticeship and Training
ARTICLE 15
Apprenticeship and Training
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8-15-101 to 8-15-301. (Repealed)
ARTICLE 15.5
Displaced Homemakers
8-15.5-101. Short title. This article shall be known and may be cited as the
"Displaced Homemakers Act".
8-15.5-102. Definitions. As used in this article, unless the context otherwise
requires:
(1) "Department" means the department of labor and employment.
(2) "Displaced homemaker" means an individual who:
(a) Has worked in the home, providing unpaid household services for family
members for a substantial number of years;
(b) Is not gainfully employed;
(c) Has had, or would have, difficulty finding employment; and
(d) (I) Has depended on the income of a family member and has lost that income;
or
(II) Has depended on government assistance as the parent of dependent children,
but who is no longer eligible for such assistance, or is supported, as the parent of minor
children, by government assistance, but whose children are within two years of reaching
the age of eighteen years.
(3) "Executive director" means the executive director of the department of labor
and employment.
8-15.5-103. Multipurpose service centers for displaced homemakers. (1) The
executive director may establish multipurpose service centers for displaced homemakers
and is authorized to enter into contracts with and make grants to agencies or
organizations, public or private, to establish, organize, and administer the various
programs enumerated in section 8-15.5-104.
(2) Each service center shall include the following services:
(a) Job counseling services which shall:
(I) Be specifically designed for displaced homemakers; and
(II) Operate to counsel displaced homemakers with respect to appropriate job
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opportunities;
(b) Job training and job placement services which shall:
(I) Develop, by working with state and local government agencies and private
employers, training and placement programs for jobs in the public and private sectors;
(II) Assist displaced homemakers in gaining admission to existing public and
private job-training programs and opportunities; and
(III) Assist in identifying community needs and creating new jobs in the public
and private sectors;
(c) Health education and counseling services in cooperation with existing health
programs with respect to:
(I) General principles of preventive health care;
(II) Health care consumer education, particularly in the selection of physicians and
health care services, including, but not limited to, health maintenance organizations and
health insurance;
(III) Family health care and nutrition;
(IV) Alcohol and drug addiction; and
(V) Other related health care matters;
(d) Financial management services which provide information and assistance with
respect to insurance, taxes, estate and probate problems, mortgages, loans, and other
related financial matters;
(e) Educational services, including:
(I) Outreach and information about courses offering credit through secondary or
postsecondary education programs, including bilingual programming where appropriate;
and
(II) Information about such other programs which are determined by the executive
director to be of interest and benefit to displaced homemakers;
(f) Legal counseling and referral services; and
(g) Outreach and information services with respect to employment, education,
health, public assistance, and unemployment assistance programs which the executive
director determines would be of interest and benefit to displaced homemakers.
(3) Supervisory, technical, and administrative positions relating to centers
established under this article shall, to the maximum extent feasible, be filled by displaced
homemakers.
8-15.5-104. Selection and administration of centers. (1) In selecting sites for
the centers established under section 8-15.5-103, the executive director shall consider:
(a) The location of any existing facilities for displaced homemakers and any
existing services similar to those listed in section 8-15.5-103 which might be incorporated
into a center;
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(b) The needs of each region of the state for a center;
(c) The needs of both urban and rural communities.
(2) The executive director shall select a public or private organization to
administer each center. The selection of such an organization shall be made after
consultation with local government agencies and shall take into consideration the
experience and capability of such organizations in administering the services to be
provided by each center.
(3) The executive director shall consult and cooperate with the secretary or
director of such agencies in the executive branch of the federal and state governments as
the executive director considers appropriate to facilitate the establishment of centers
under this article with existing state or federal programs of a similar nature.
8-15.5-105. Evaluation. (1) The executive director, in cooperation with the
administrator of each center, and in consultation with appropriate heads of executive
agencies, shall prepare and furnish to the general assembly evaluations of the centers
established under this article, including:
(a) A thorough assessment of each center;
(b) Recommendations covering the administration and expansion of such centers;
and
(c) Data on the numbers of persons referred to and enrolled in the programs
enumerated in section 8-15.5-103, and data on job placements and employment of persons
enrolled in such programs.
(2) No later than January 1, 1981, the executive director shall submit to the
general assembly an evaluation pursuant to this section. Subsequent evaluations shall be
made every two years.
(3) The executive director, in consultation with the appropriate heads of executive
agencies, shall prepare and furnish to the general assembly a study to determine the
feasibility of and appropriate procedure for placing displaced homemakers in:
(a) Programs established under the federal "Workforce Investment Act of 1998",
29 U.S.C. sec. 2801 et seq.;
(b) Work incentive programs established under section 432 (b) (1) of the federal
"Social Security Act";
(c) Related federal and state employment, education, and health assistance
programs; and
(d)
Programs established or benefits provided under federal and state
unemployment compensation laws by consideration of full-time homemakers as provided
eligible for such benefits or programs.
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8-15.5-106. Advisory body. The executive director shall establish an advisory
body to the department which shall consist of members who are representative of
displaced homemakers, local service deliverers, appropriate state agencies, and the
general public. The advisory body shall provide recommendations to the executive
director regarding the planning, operation, and evaluation of the activities mandated by
this article.
8-15.5-107. Rules and regulations. The executive director shall promulgate rules
and regulations to govern the eligibility of persons for the job training and other programs
of the multipurpose service center, the level of stipends for the job training programs
described in section 8-15.5-103 (2) (b), a sliding fee scale for the service programs
described in section 8-15.5-103 (2) (c) to (2) (g), and such other matters as the executive
director deems necessary.
8-15.5-108. Displaced homemakers fund - creation. (1) There is hereby created
in the state treasury the displaced homemakers fund. All fees collected pursuant to section
14-10-120.5, C.R.S., shall be deposited in said fund. All moneys in the fund shall be
subject to annual appropriation by the general assembly and, commencing July 1, 1980,
shall be available for carrying out the purposes of this article; except that, if the amount in
said fund from fees collected pursuant to section 14-10-120.5, C.R.S., exceeds one
hundred forty-five thousand dollars in any fiscal year, the excess of one hundred fortyfive thousand dollars shall revert to the general fund.
(2) The executive director may apply for and accept any funds, grants, gifts, or
services made available by any agency or department of the federal government or any
private agency or individual, which funds, grants, gifts, or services shall be used to carry
out the total program of this article. Funds and grants received pursuant to this subsection
(2) shall be placed in the displaced homemakers fund in a separate account and shall not
be included in computing the amount that will revert to the general fund pursuant to
subsection (1) of this section.
Public Works
ARTICLE 16
Rate of Wages on Public Works
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8-16-101. (Repealed)
ARTICLE 17
Colorado Labor on Public Works
8-17-101. Colorado labor employed on public works. (1) Whenever any public
works project financed in whole or in part by funds of the state, counties, school districts,
or municipalities of the state of Colorado are undertaken in this state, Colorado labor shall
be employed to perform at least eighty percent of the work. The governmental body
financing a public works project shall waive the eighty percent requirement if there is
reasonable evidence to demonstrate insufficient Colorado labor to perform the work of
the project and if compliance with this article would create an undue burden that would
substantially prevent a project from proceeding to completion. A governmental body that
allows a waiver pursuant to this subsection (1) shall post notice of the waiver and a
justification for the waiver on its web site. A governmental body shall not impose
contractual damages on a contractor for a delay in work due to the waiver process.
(2) As used in this article:
(a) "Colorado labor" means any person who is a resident of the state of Colorado,
at the time of the public works project, without discrimination as to race, color, creed,
sex, sexual orientation, marital status, national origin, ancestry, age, or religion except
when sex or age is a bona fide occupational qualification. A resident of the state of
Colorado is a person who can provide a valid Colorado driver's license, a valid Colorado
state-issued photo identification, or documentation that he or she has resided in Colorado
for the last thirty days.
(b) "Public works project" shall have the same meaning as "public project" as
defined in section 8-19-102 (1).
8-17-102. Contracts to provide for preference of Colorado labor. All contracts
let for public works financed in whole or in part by funds of the state, counties, school
districts, or municipalities of the state of Colorado shall contain provisions for the
preference in employment of Colorado labor.
8-17-103. Penalty for violation. (Repealed)
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8-17-104. Enforcement - violation - penalties - Colorado labor enforcement
cash fund - creation. (1) The department of labor and employment shall enforce the
requirements of this article in the event of a complaint alleging a potential violation of the
requirements of this article. In connection with the department's duty to enforce the
requirements of this article, the department shall receive complaints about potential
violations of such requirements, initiate investigations based on such complaints, and
impose penalties for the violation of the requirements of this article pursuant to
subsection (2) of this section. The department shall not investigate or take any other
action regarding a complaint filed more than ninety days after the project has been
finalized.
(2) (a) After conducting an investigation of a complaint alleging a violation of the
provisions of this article, if the department of labor and employment determines that a
contractor has knowingly violated the requirements of this article by importing labor in
excess of that permitted pursuant to section 8-17-101 (1), the executive director of the
department of labor and employment or the executive director's designee shall impose a
fine on such contractor as follows:
(I) For the first violation, five thousand dollars or an amount equal to one percent
of the cost of the contract, whichever is less;
(II) For the second violation, ten thousand dollars or an amount equal to one
percent of the cost of the contract, whichever is less; or
(III) For the third violation and any violation thereafter, twenty-five thousand
dollars or an amount equal to one percent of the cost of the contract, whichever is less.
(b) When the department of labor and employment receives a complaint, it shall
notify the contractor of the complaint, but shall commence the investigation only at the
completion of the project. The department shall complete any investigation in response to
a complaint within ninety days of the date that the department began the investigation.
Compliance shall be measured over the entirety of the completed project.
(c) If the department of labor and employment has imposed three fines on a
contractor pursuant to paragraph (a) of this subsection (2) within five years and finds the
violations to be egregious, the executive director of the department of labor and
employment or the executive director's designee may initiate the process to debar the
contractor pursuant to section 24-109-105, C.R.S.
(d) The executive director of the department of labor and employment may
dismiss a complaint in his or her discretion if, after conducting an investigation pursuant
to this section, the department determines that the circumstances that led to the complaint
were the result of a minor paperwork violation.
(3) A contractor who is found to be in violation of the provisions of this article
may appeal such finding to the executive director of the department of labor and
employment. The executive director or the executive director's designee shall hold a
hearing to review such notice or order and take final action in accordance with article 4 of
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title 24, C.R.S., and may either conduct the hearing personally or appoint an
administrative law judge from the department of personnel. Final agency action is subject
to judicial review pursuant to article 4 of title 24, C.R.S.
(4) The revenue collected from the fines imposed pursuant to subsection (2) of
this section shall be transmitted to the state treasurer, who shall credit the same to the
Colorado labor enforcement cash fund, which is hereby created. The general assembly
shall make appropriations from the fund as necessary to cover the direct and indirect costs
of the department of labor and employment in connection with the requirements of this
article. All moneys not expended or encumbered and all interest earned on the investment
or deposit of moneys in the fund remain in the fund and do not revert to the general fund
or any other fund at the end of any fiscal year.
(5) The requirements of this article may not be enforced through a private right of
action.
8-17-105.Compliance standard. Compliance with the requirements of this article
shall be calculated on the total taxable wages and fringe benefits, minus any per diem
payments, paid to workers employed directly on the site of the project and who satisfy the
definition of Colorado labor.
8-17-106. Rules. (1) The executive director of the department of labor and
employment shall promulgate rules for the implementation of this article. Such rules shall
be promulgated in accordance with the "State Administrative Procedure Act", article 4 of
title 24, C.R.S., and must include, but need not be limited to:
(a) A procedure for filing a complaint alleging that a contractor is in violation of
the provisions of this article;
(b) A procedure for the uniform investigation of any complaint alleging a
violation of the provisions of this article; and
(c) A procedure for filing an appeal pursuant to section 8-17-104 (3).
8-17-107. Federal and state law. Nothing in this article applies to any project
that receives federal moneys. In addition, nothing in this article contravenes any existing
treaty, law, agreement, or regulation of the United States. Contracts entered into in
accordance with any treaty, law, agreement, or regulation of the United States do not
violate this article to the extent of that accordance. The requirements of this article are
suspended if such requirement would contravene any treaty, law, agreement, or regulation
of the United States, or would cause denial of federal moneys or preclude the ability to
access federal moneys that would otherwise be available.
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ARTICLE 17.5
Illegal Aliens - Public Contracts for Services
8-17.5-101. Definitions. As used in this article, unless the context otherwise
requires:
(1) (Deleted by amendment, L. 2008, p. 736, § 1, effective May 13, 2008.)
(2) "Contractor" means a person having a public contract for services with a state
agency or political subdivision of the state.
(3) "Department" means the department of labor and employment.
(3.3) "Department program" means the employment verification program
established pursuant to section 8-17.5-102 (5) (c).
(3.7) "E-verify program" means the electronic employment verification program
created in Public Law 104-208, as amended, and expanded in Public Law 108-156, as
amended, and jointly administered by the United States department of homeland security
and the social security administration, or its successor program.
(4) "Executive director" means the executive director of the department of labor
and employment.
(4.5) "Newly hired for employment" means hired to work in the United States
since the effective date of the public contract for services.
(5) "Political subdivision" means any city, county, city and county, town, special
district, school district, local improvement district, or any other kind of municipal, quasimunicipal, or public corporation organized pursuant to law.
(6) (a) "Public contract for services" means any type of agreement, regardless of
what the agreement may be called, between a state agency or political subdivision and a
contractor for the procurement of services.
(b) "Public contract for services" does not include:
(I) Agreements relating to the offer, issuance, or sale of securities, including but
not limited to agreements pertaining to:
(A) Underwriting, marketing, remarketing, paying, transferring, rating, or
registering securities; or
(B) The provision of credit enhancement, liquidity support, interest rate
exchanges, or trustee or financial consulting services in connection with securities;
(II) Agreements for investment advisory services or fund management services;
(III) Any grant, award, or contract funded by any federal or private entity for any
research or sponsored project activity of an institution of higher education or an affiliate
of an institution of higher education that is funded from moneys that are restricted by the
entity under the grant, award, or contract. For purposes of this subparagraph (III),
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"sponsored project" means an agreement between an institution of higher education and
another party that provides restricted funding and requires oversight responsibilities for
research and development or other specified programmatic activities that are sponsored
by federal or private agencies and organizations.
(IV) Intergovernmental agreements; or
(V) Agreements for information technology services or products and services.
(7) "Services" means the furnishing of labor, time, or effort by a contractor or a
subcontractor not involving the delivery of a specific end product other than reports that
are merely incidental to the required performance.
(8) "State agency" means any department, commission, council, board, bureau,
committee, institution of higher education, agency, or other governmental unit of the
executive, legislative, or judicial branch of state government.
8-17.5-102. Illegal aliens - prohibition - public contracts for services rules. (1) A state agency or political subdivision shall not enter into or renew a public
contract for services with a contractor who knowingly employs or contracts with an
illegal alien to perform work under the contract or who knowingly contracts with a
subcontractor who knowingly employs or contracts with an illegal alien to perform work
under the contract. Prior to executing a public contract for services, each prospective
contractor shall certify that, at the time of the certification, it does not knowingly employ
or contract with an illegal alien who will perform work under the public contract for
services and that the contractor will participate in the e-verify program or department
program in order to confirm the employment eligibility of all employees who are newly
hired for employment to perform work under the public contract for services.
(2) (a) Each public contract for services shall include a provision that the
contractor shall not:
(I) Knowingly employ or contract with an illegal alien to perform work under the
public contract for services; or
(II) Enter into a contract with a subcontractor that fails to certify to the contractor
that the subcontractor shall not knowingly employ or contract with an illegal alien to
perform work under the public contract for services.
(b) Each public contract for services shall also include the following provisions:
(I) A provision stating that the contractor has confirmed the employment
eligibility of all employees who are newly hired for employment to perform work under
the public contract for services through participation in either the e-verify program or the
department program;
(II) A provision that prohibits the contractor from using either the e-verify
program or the department program procedures to undertake preemployment screening of
job applicants while the public contract for services is being performed;
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(III) A provision that, if the contractor obtains actual knowledge that a
subcontractor performing work under the public contract for services knowingly employs
or contracts with an illegal alien, the contractor shall be required to:
(A) Notify the subcontractor and the contracting state agency or political
subdivision within three days that the contractor has actual knowledge that the
subcontractor is employing or contracting with an illegal alien; and
(B) Terminate the subcontract with the subcontractor if within three days of
receiving the notice required pursuant to sub-subparagraph (A) of this subparagraph (III)
the subcontractor does not stop employing or contracting with the illegal alien; except that
the contractor shall not terminate the contract with the subcontractor if during such three
days the subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien;
(IV) A provision that requires the contractor to comply with any reasonable
request by the department made in the course of an investigation that the department is
undertaking pursuant to the authority established in subsection (5) of this section.
(3) If a contractor violates a provision of the public contract for services required
pursuant to subsection (2) of this section, the state agency or political subdivision may
terminate the contract for a breach of the contract. If the contract is so terminated, the
contractor shall be liable for actual and consequential damages to the state agency or
political subdivision.
(4) A state agency or political subdivision shall notify the office of the secretary of
state if a contractor violates a provision of a public contract for services required pursuant
to subsection (2) of this section and the state agency or political subdivision terminates
the contract for such breach. Based on this notification, the secretary of state shall
maintain a list that includes the name of the contractor, the state agency or political
subdivision that terminated the public contract for services, and the date of the
termination. A contractor shall be removed from the list if two years have passed since
the date the contract was terminated, or if a court of competent jurisdiction determines
that there has not been a violation of the provision of the public contract for services
required pursuant to subsection (2) of this section. A state agency or political subdivision
shall notify the office of the secretary of state if a court has made such a determination.
The list shall be available for public inspection at the office of the secretary of state and
shall be published on the internet on the web site maintained by the office of the secretary
of state.
(5) (a) The department may investigate whether a contractor is complying with the
provisions of a public contract for services required pursuant to subsection (2) of this
section. The department may conduct on-site inspections where a public contract for
services is being performed within the state of Colorado, request and review
documentation that proves the citizenship of any person performing work on a public
contract for services, or take any other reasonable steps that are necessary to determine
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whether a contractor is complying with the provisions of a public contract for services
required pursuant to subsection (2) of this section. The department shall receive
complaints of suspected violations of a provision of a public contract for services required
pursuant to subsection (2) of this section and shall have discretion to determine which
complaints, if any, are to be investigated. The results of any investigation shall not
constitute final agency action. The department is authorized to promulgate rules in
accordance with article 4 of title 24, C.R.S., to implement the provisions of this
subsection (5).
(b) The executive director shall notify a state agency or political subdivision if he
or she suspects that there has been a breach of a provision in a public contract for services
required pursuant to subsection (2) of this section.
(c) (I) There is hereby created the department program. Any contractor who
participates in the department program shall notify the department and the contracting
state agency or political subdivision of such participation. A participating contractor shall
comply with the provisions of subparagraph (II) of this paragraph (c) and shall consent to
department audits conducted in accordance with subparagraph (III) of this paragraph (c).
Failure to meet either of these obligations shall constitute a violation of the department
program. The executive director shall notify a contracting state agency or political
subdivision of such violation.
(II) A participating contractor shall, within twenty days after hiring an employee
who is newly hired for employment to perform work under the public contract for
services, affirm that the contractor has examined the legal work status of such employee,
retained file copies of the documents required by 8 U.S.C. sec. 1324a, and not altered or
falsified the identification documents for such employees. The contractor shall provide a
written, notarized copy of the affirmation to the contracting state agency or political
subdivision.
(III) The department may conduct random audits of state agencies or political
subdivisions to review the affidavits and of contractors to review copies of the documents
required by subparagraph (II) of this paragraph (c). Audits shall not violate federal law.
(6) Nothing in this section shall be construed as requiring a contractor to violate
any terms of participation in the e-verify program.
ARTICLE 18
Preference for State Commodities and Services
8-18-101. Bid preference - state contracts. (1) (a) Except as provided in
paragraph (b) of this subsection (1) and in section 8-18-103, when a contract for
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commodities or services is to be awarded to a bidder, a resident bidder as defined in
section 8-19-102 (2) shall be allowed a preference against a nonresident bidder equal to
the preference given or required by the state in which the nonresident bidder is a resident.
(b) Notwithstanding paragraph (a) of this subsection (1), when an invitation for
bids for a contract for the purchase of commodities results in a low tie bid, as defined in
section 24-103-101, C.R.S., the provisions of section 24-103-202.5, C.R.S., apply.
(c) For the purposes of this subsection (1), "commodities" includes supplies as
defined in section 24-101-301 (22), C.R.S.
(2) If it is determined by the officer responsible for awarding the bid that
compliance with this section may cause denial of federal moneys which would otherwise
be available or would otherwise be inconsistent with requirements of federal law, this
section shall be suspended, but only to the extent necessary to prevent denial of the
moneys or to eliminate the inconsistency with federal requirements.
(3) This section applies to contracts governed by the procurement code in articles
101 to 112 of title 24, C.R.S.
8-18-102. Repeal of article. (Repealed)
8-18-103. Preference for state agricultural products. (1) When purchasing
agricultural products, a governmental body, as defined in section 24-101-301 (10),
C.R.S., shall award the contract to a resident bidder, as defined in section 8-19-102 (2),
who produces products in the state, subject to the conditions in subsection (2) of this
section.
(2) The preference in subsection (1) of this section shall apply only if the
following conditions are met:
(a) The quality of available products produced in the state is equal to the quality of
products produced outside the state;
(b) Available products produced in the state are suitable for the use required by
the purchasing entity;
(c) The resident bidder is able to supply products produced in the state in
sufficient quantity, as indicated in the invitation for bids; and
(d) (I) The resident bidder's bid or quoted price for products produced in the state
does not exceed the lowest bid or price quoted for products produced outside the state or
the resident bidder's bid or quoted price reasonably exceeds the lowest bid or price quoted
for products produced outside the state.
(II) For purposes of this paragraph (d), "reasonably exceeds" shall occur when the
head of the governmental body, or other public officer charged by law with the duty to
purchase such products, at his or her sole discretion, determines such higher bid to be
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reasonable and capable of being paid out of that governmental body's existing budget,
without any further supplemental or additional appropriation.
(3) (a) For purposes of this section, an agricultural product is produced in the state
if it is grown, raised, or processed in the state.
(b) A resident bidder that seeks to qualify for the preference created by subsection
(1) of this section shall certify to the governmental body inviting the bid and provide
documentation confirming that the resident bidder's agricultural product was produced in
the state. The governmental body may rely in good faith on such certification and
documentation.
(4) A governmental body shall report to the joint budget committee of the general
assembly, or any successor committee, any cost increases associated with the provisions
of this section during the previous fiscal year.
(5) This section shall apply to contracts governed by the "Procurement Code" in
articles 101 to 112 of title 24, C.R.S.
ARTICLE 19
Bid Preference - Public Projects
8-19-101. Bid preference - public projects. (1) When a construction contract for
a public project is to be awarded to a bidder, a resident bidder shall be allowed a
preference against a nonresident bidder from a state or foreign country equal to the
preference given or required by the state or foreign country in which the nonresident
bidder is a resident.
(2) If it is determined by the officer responsible for awarding the bid that
compliance with this section may cause denial of federal moneys which would otherwise
be available or would otherwise be inconsistent with requirements of federal law, this
section shall be suspended, but only to the extent necessary to prevent denial of the
moneys or to eliminate the inconsistency with federal requirements.
8-19-102. Definitions. As used in this article, unless the context otherwise
requires:
(1) "Nonresident bidder" means a bidder that does not satisfy the criteria to be a
resident bidder.
(2) "Public project" means:
(a) Any public project as defined in section 24-92-102 (8), C.R.S., including any
such project awarded by any county, including any home rule county, municipality, as
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defined in section 31-1-101 (6), C.R.S., school district, special district, or other political
subdivision of the state;
(b) Any publicly funded contract for construction entered into by a governmental
body of the executive branch of this state which is subject to the "Procurement Code",
articles 101 to 112 of title 24, C.R.S.; and
(c) Any highway or bridge construction, whether undertaken by the department of
transportation or by any political subdivision of this state, in which the expenditure of
funds may be reasonably expected to exceed fifty thousand dollars.
(3) "Resident bidder" means:
(a) A person, partnership, corporation, or joint venture which is authorized to
transact business in Colorado and which maintains its principal place of business in
Colorado; or
(b) A person, partnership, corporation, or joint venture which:
(I) Is authorized to transact business in Colorado;
(II) Maintains a place of business in Colorado; and
(III) Has paid Colorado unemployment compensation taxes in at least six of the
eight quarters immediately prior to bidding on a construction contract for a public project.
8-19-102.5. Resident bidder - reciprocity. (Repealed)
8-19-103. Repeal of article. (Repealed)
8-19-104. Bid preference - survey - report. (1) The executive director of the
department of personnel, or the executive director's designee, shall conduct a survey and
compile the results into a list of which states provide a bidding preference on public
works contracts for their resident bidders. The list must include details on the type of
preference provided by each state, the amount of the preference, and how the preference
is applied. The executive director shall complete the initial list on or before July 1, 2014,
and shall update the list periodically as needed but at least on an annual basis. On or
before January 1, 2015, the department of personnel shall submit a report including the
list compiled pursuant to this subsection (1) and any recommendation necessary to
implement this section to the standing committee of reference in each house of the
general assembly exercising jurisdiction over matters concerning state affairs and labor.
The department shall also make the list available to the public on the department's web
site.
(2) In any bidding process for public works in which a bid is received from a
bidder who is not a resident bidder and who is from a state that provides a percentage
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bidding preference to resident bidders of that state, a comparable percentage disadvantage
shall be applied to the bid of that bidder.
(3) Any request for proposals issued by a state agency or political subdivision of
the state must include a notice to nonresident bidders that if the nonresident bidder is
from a state that provides a bidding preference to bidders from that state, then a
comparable percentage disadvantage will be applied to the bid of that nonresident bidder.
The notice must also specify that the bidder may obtain additional information from the
department of personnel's web site.
(4) The executive director of the department of personnel shall promulgate rules
necessary for the implementation of this section. Such rules shall be promulgated in
accordance with the "State Administrative Procedure Act", article 4 of title 24, C.R.S.
8-19-105. Federal and state law. Nothing in this article applies to any project
that receives federal moneys. In addition, nothing in this article contravenes any existing
treaty, law, agreement, or regulation of the United States. Contracts entered into in
accordance with any treaty, law, agreement, or regulation of the United States do not
violate this article to the extent of that accordance. The requirements of this article are
suspended if such requirement would contravene any treaty, law, agreement, or regulation
of the United States, or would cause denial of federal moneys or preclude the ability to
access federal moneys that would otherwise be available.
ARTICLE 19.5
Bid Preference - Recycled Plastic Products
8-19.5-101. Bid preference - recycled plastic products. (1) When a contract is
to be awarded in a public project, a bidder who has used recycled plastics in the
manufacture of the commodity or supplies described in the bid shall be allowed a
preference of up to five percent for finished products which contain no less than ten
percent recycled plastics.
(2) If it is determined by the officer responsible for awarding a bid that
compliance with this section may cause denial of federal moneys which would otherwise
be available or would otherwise be inconsistent with requirements of federal law, this
section shall be suspended, but only to the extent necessary to prevent denial of the
moneys or to eliminate the inconsistency with federal requirements.
(3) For purposes of this section, "public project" means any publicly funded
contract entered into by a governmental body of the executive branch of this state which
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is subject to the "Procurement Code", articles 101 to 112 of title 24, C.R.S.
ARTICLE 19.7
Bid Preference - Recycled Paper Products
8-19.7-101 to 8-19.7-103. (Repealed)
Fuel Products
ARTICLE 20
Fuel Products
PART 1
DIVISION OF OIL AND PUBLIC SAFETY
8-20-101. Division of oil and public safety - creation - appointment of director
- transfer of duties. (1) There is hereby created within the department of labor and
employment the division of oil and public safety, the head of which shall be the director
of the division of oil and public safety. The director of the division of oil and public
safety shall be appointed by the executive director of the department of labor and
employment and shall not have an interest in the manufacture, sale, or distribution of oils.
(2) The director of the division of oil and public safety, on and after July 1, 2001,
shall execute, administer, perform, and enforce the rights, powers, duties, functions, and
obligations vested prior to July 1, 2001, in the state inspector of oils, the state boiler
inspector, and, with respect to articles 6 and 7 of title 9, C.R.S., the director of the
division of labor. On July 1, 2001, all employees of the state inspector of oils, the state
boiler inspector, and, with respect to duties performed pursuant to articles 6 and 7 of title
9, C.R.S., the director of the division of labor, whose principal duties are concerned with
the duties and functions to be performed by the director of the division of oil and public
safety and whose employment by the director of the division of oil and public safety is
deemed necessary by the director of the division of oil and public safety to carry out the
purposes of articles 20 and 20.5 of this title and articles 4, 6, and 7 of title 9, C.R.S., shall
be transferred to the director of the division of oil and public safety and shall become
employees thereof. Such employees shall retain all rights to the state personnel system
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and retirement benefits under the laws of this state, and their services shall be deemed to
have been continuous. All transfers and any abolishment of positions in the state
personnel system shall be made and processed in accordance with state personnel system
laws and rules.
(3) and (4) Repealed.
(5) The director of the division of oil and public safety shall enforce and
administer article 5.5 of title 9, C.R.S.
8-20-102. Duties of director of division of oil and public safety - rules. (1) The
director of the division of oil and public safety shall make, promulgate, and enforce rules
setting forth minimum and general standards covering the design, construction, location,
installation, and operation of equipment for storing, handling, and utilizing liquid fuel
products. Said rules shall be such as are reasonably necessary for the protection of the
health, welfare, and safety of the public and persons using such materials, and shall be in
substantial conformity with the generally accepted standards of safety concerning the
same subject matter. Such rules shall be adopted by the director of the division of oil and
public safety in compliance with section 24-4-103, C.R.S.
(2) The director of the division of oil and public safety shall enforce the
provisions of section 8-20-213 concerning recycled and used motor oil.
(3) Prior to January 1, 2014, the director of the division of oil and public safety
shall promulgate rules for natural gas setting forth standards related to inspections;
specifications; shipment notification; record keeping; labeling of containers; use of
meters or mechanical devices for measurement; submittal of installation plans; and
minimum standards for the design, construction, location, installation, and operation of
retail natural gas systems. The division shall begin enforcing the rules on July 1, 2014.
The director may modify or update the rules in his or her discretion. All of the rules
required by this subsection (3) must be reasonably necessary for the protection of the
health, welfare, and safety of the public and persons using such materials, and the rules
must be in substantial conformity with the generally accepted standards of safety
concerning the same subject matter. The director shall adopt the rules in compliance with
section 24-4-103, C.R.S.
8-20-103. Inspector's report - publications.
(1) Repealed.
(2) Publications of the office circulated in quantity outside the executive branch
shall be issued in accordance with the provisions of section 24-1-136, C.R.S.
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8-20-104. Enforcement of law - penalties - definitions. (1) The director shall
enforce this article, articles 4, 5.5, and 7 of title 9, C.R.S., and rules promulgated pursuant
to this article and articles 4, 5.5, and 7 of title 9, C.R.S., by appropriate actions in courts
of competent jurisdiction.
(2) (a) The director may issue a notice of violation to a person who is believed to
have violated this article, article 4, 5.5, or 7 of title 9, C.R.S., or rules promulgated
pursuant to this article or article 4, 5.5, or 7 of title 9, C.R.S. The notice shall be delivered
to the alleged violator personally, by certified mail, return receipt requested, or by any
means that verifies receipt as reliably as certified mail, return receipt requested.
(b) The notice of violation shall allege the facts that constitute a violation and the
rule or statute violated.
(c) The notice of violation may require the alleged violator to act to correct the
alleged violation.
(d) Within ten working days after delivery of the notice of violation, the alleged
violator may request in writing an informal conference with the director concerning the
notice of violation. If the alleged violator fails to request such conference within ten days,
the notice is then final, the notice is not subject to further review, and any statement of
facts required to correct the alleged violation pursuant to paragraph (c) of this subsection
(2) become a binding enforcement order.
(e) Upon receipt of a request for an informal conference, the director shall set a
reasonable time and place for such conference and shall notify the alleged violator of such
time and place. At the conference, the alleged violator may present evidence and
arguments concerning the allegations in the notice of violation.
(f) Within twenty working days after the informal conference, the director shall
uphold, modify, or strike the allegations within the notice of violation and may issue an
enforcement order. The decision and, if applicable, enforcement order shall be delivered
to the alleged violator personally, by certified mail, return receipt requested, or by any
means that verifies receipt as reliably as certified mail, return receipt requested.
(3) (a) A person who is the subject of and is adversely affected by a notice of
violation or an enforcement order issued pursuant to subsection (2) of this section may
appeal such action to the executive director of the department of labor and employment.
The executive director shall hold a hearing to review such notice or order and take final
action in accordance with article 4 of title 24, C.R.S., and may either conduct the hearing
personally or appoint an administrative law judge from the department of personnel.
(b) Final agency action shall be subject to judicial review pursuant to article 4 of
title 24, C.R.S.
(c) An alleged violator who is required to correct an action pursuant to paragraph
(c) of subsection (2) of this section shall be afforded the procedures set forth in section
24-4-104 (3), C.R.S., to the extent applicable.
(4) (a) An enforcement order issued pursuant to this section may impose a civil
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penalty, depending on the severity of the alleged violation, not to exceed five hundred
dollars per violation for each day of violation; except that the director may impose a civil
penalty not to exceed one thousand dollars per violation for each day of violation that
results in, or may reasonably be expected to result in, serious bodily injury.
(b) A civil penalty collected for a violation of:
(I) Article 4 of title 9, C.R.S., or a rule promulgated pursuant to such article, shall
be deposited in the boiler inspection fund created in section 9-4-109, C.R.S.;
(II) Article 5.5 of title 9, C.R.S., or a rule promulgated pursuant to such article,
shall be deposited in the conveyance safety fund created in section 9-5.5-111, C.R.S.;
(III) Article 7 of title 9, C.R.S., or a rule promulgated pursuant to such article,
shall be deposited in the public safety inspection fund created in section 8-1-151.
(5) The director may file suit in the district court in the judicial district in which a
violation is alleged to have occurred to judicially enforce an enforcement order issued
pursuant to this section.
(6) For the purposes of this section:
(a) "Director" means the director of the division of oil and public safety.
(b) "Division" means the division of oil and public safety.
(7) In addition to the remedies provided in this section, the director is authorized
to apply to the district court, in the judicial district where the violation has occurred, for a
temporary or permanent injunction restraining any person from violating any provision of
articles 4, 5.5, and 7 of title 9, C.R.S., and rules promulgated pursuant to articles 4, 5.5,
and 7 of title 9, C.R.S., regardless of whether there is an adequate remedy at law.
8-20-105. Expenses of administration. (Repealed)
8-20-106. Confidentiality. (1) Information concerning liquefied petroleum gas
storage tanks obtained under this article shall be available to the public; except that any
specific information that is confidential by state or federal law shall remain confidential.
(2) Confidential records may be disclosed to officers, employees, or authorized
representatives of this state or of the United States who have been charged with
administering this article or subchapter I of the federal "Resource Conservation and
Recovery Act of 1976", as amended. Such disclosure shall not constitute a waiver of
confidentiality.
PART 2
FUEL PRODUCTS
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8-20-201. Definitions. As used in this part 2, unless the context otherwise
requires:
(1) "Alternative fuel" means a motor fuel that combines petroleum-based fuel
products with renewable fuels.
(1.1) "Antiknock index" or "AKI" means the arithmetic average of the research
octane number (RON) and motor octane number (MON): AKI = (RON+MON)/2. This
value is called by a variety of names in addition to antiknock index including: Octane
rating, posted octane, and (R+M)/2 octane.
(1.2) "ASTM" means ASTM international, formerly known as the American
society for testing and materials.
(1.3) "British thermal unit" or "BTU" means a scientific unit of measurement
equal to the quantity of heat required to raise the temperature of one pound of water one
degree Fahrenheit at approximately sixty degrees Fahrenheit.
(1.5) "Department" means the department of labor and employment, division of
oil and public safety.
(1.7) "DOT" means the United States department of transportation.
(2) "Fuel products" means all gasoline, aviation gasoline, aviation turbine fuel,
diesel, jet fuel, fuel oil, biodiesel, biodiesel blends, kerosene, all alcohol blended fuels,
liquified petroleum gas, gas or gaseous compounds, and all other volatile, flammable, or
combustible liquids, produced, compounded, and offered for sale or used for the purpose
of generating heat, light, or power in internal combustion engines or fuel cells, for
cleaning, or for any other similar usage.
Editor's note: This version of subsection (2) is effective until January 1, 2014.
(2) "Fuel products" means all gasoline, aviation gasoline, aviation turbine fuel,
diesel, jet fuel, fuel oil, biodiesel, biodiesel blends, kerosene, all alcohol blended fuels,
liquefied petroleum gas, gas or gaseous compounds, natural gas, including compressed
natural gas and liquefied natural gas, and all other volatile, flammable, or combustible
liquids, produced, compounded, and offered for sale or used for the purpose of generating
heat, light, or power in internal combustion engines or fuel cells, for cleaning, or for any
other similar usage.
Editor's note: This version of subsection (2) is effective January 1, 2014.
(2.3) (a) "Gallon equivalent" means either a gallon diesel equivalent or a gallon
gasoline equivalent.
(b) (Deleted by amendment, L. 97, p. 137, § 1, effective March 28, 1997.)
(2.5) (a) "Gallon diesel equivalent" means an amount of a motor fuel that contains
an average lower heating value of one hundred twenty-eight thousand BTUs (British
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thermal units), but in no case contains a lower heating value of less than one hundred
twenty-four thousand BTUs.
(b) (Deleted by amendment, L. 97, p. 137, § 1, effective March 28, 1997.)
(2.7) (a) "Gallon gasoline equivalent" means an amount of a motor fuel that
contains an average lower heating value of one hundred fourteen thousand BTUs (British
thermal units), but in no case contains a lower heating value of less than one hundred ten
thousand BTUs.
(b) (Deleted by amendment, L. 97, p. 137, § 1, effective March 28, 1997.)
(3) "Gross gallons" as applied to fuel and petroleum products means units of two
hundred thirty-one cubic inches measured at storage or metered temperature.
(3.5) "Hg" means the element mercury.
(4) "Lubricants" means petroleum products used for the purpose of reducing
friction between moving surfaces.
(4.5) (a) "Motor fuel" means any liquid or gas used as fuel to generate power in
engines or motors.
(b) (Deleted by amendment, L. 97, p. 137, § 1, effective March 28, 1997.)
(5) "Net gallons" as applied to fuel and petroleum products means units of two
hundred thirty-one cubic inches measured at standard temperature.
(5.3) "NFPA" means the national fire protection association.
(5.5) "NIST" means the national institute of standards and technology.
(6) "Person" means an individual, trust or estate, partnership, association, joint
stock company or corporation, and any receiver appointed by law.
(7) "Proved" as applied to measuring devices means the act of having verified the
accuracy of meters used to measure fuel and petroleum products.
(8) "Prover" as applied to determination of meter accuracy means a calibrated
volumetric receiver or a mechanical positive displacement device.
(8.5) "Renewable fuel" means a motor vehicle fuel that is produced from plant or
animal products or wastes, as opposed to fossil fuel sources.
(9) "Standard temperature" as applied to fuel and petroleum products means sixty
degrees Fahrenheit.
(10) "Temperature compensation" as applied to liquid measure of fuel and
petroleum products means adjustment of gallons measured at storage or metered
temperature to the standard temperature.
8-20-202. Classification of liquid fuel products. (1) "Liquid" means any
material that has a fluidity greater than that of three hundred penetration asphalt when
tested in accordance with ASTM specifications that are found in publication number D 5,
"Test for Penetration of Bituminous Materials". Unless otherwise identified, the term
"liquid" shall include both flammable and combustible liquids.
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(2) "Flammable liquid" or "class I liquid" means a liquid that has a flash point
below one hundred degrees Fahrenheit and a vapor pressure not exceeding forty PSIA at
one degree Fahrenheit. Class I liquids are subdivided as follows:
(a) Class IA liquids have a flash point below seventy-three degrees Fahrenheit and
a boiling point below one hundred degrees Fahrenheit.
(b) Class IB liquids have a flash point below seventy-three degrees Fahrenheit and
a boiling point at or above one hundred degrees Fahrenheit.
(c) Class IC liquids have a flash point at or above seventy-three degrees
Fahrenheit and below one hundred degrees Fahrenheit.
(3) "Combustible liquid" means a liquid that has a flash point at or above one
hundred degrees Fahrenheit. Combustible liquids are subdivided as follows:
(a) Class II liquids have a flash point at or above one hundred degrees Fahrenheit
and below one hundred forty degrees Fahrenheit.
(b) Class IIIA liquids have a flash point at or above one hundred forty degrees
Fahrenheit and below two hundred degrees Fahrenheit.
(c) Class IIIB liquids have a flash point at or above two hundred degrees
Fahrenheit.
8-20-203. Inspection. (1) All fuel products included within classes I and II shall
be inspected and the containers of such products marked by brand or stencil as provided
in this part 2, and all fuel products shall comply with the specifications provided for in
this part 2.
(2) Fuel products included in class III shall be subject to inspection.
(3) All transports and other tank trucks used to carry fuel products shall
prominently display thereon, in letters at least three inches in height, the name and
address of the owner or operator thereof. All such transport, tank, and delivery trucks
shall also display prominently upon the rear of the tank the appropriate DOT placard for
the product contained therein.
(4) At all filling stations, garages, stores, and all other places where fuel products
are sold or offered for sale, there shall be displayed in a prominent place where it may be
readily seen on each pump, the name, trade name, symbol, sign, or other distinguishing
mark or device of such fuel product in type at least two inches in height. If such fuel
product has no such name, trade name, symbol, sign, or other distinguishing mark, or
device, then there shall be displayed the name and address of the person from whom such
fuel product was purchased.
8-20-204. Specifications - classes I, II, and III. (1) All products in classes I, II,
and III shall comply with the most current applicable specifications of ASTM, which are
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found in section 5 of that organization's publication "Petroleum Products, Lubricants, and
Fossil Fuels" and supplements thereto or revisions thereof as may be designated by
ASTM, except as modified or rejected by this article or any rule promulgated pursuant to
this article. If gasoline is blended with ethanol, the ASTM D 4814 specifications shall
apply to the base gasoline prior to blending. Blends of gasoline and ethanol shall not
exceed the ASTM D 4814 vapor pressure standard; except that, if the ethanol is blended
at nine percent or higher but not exceeding ten percent, the blend may exceed the ASTM
D 4814 vapor pressure standard by no more than 1.0 PSI. Class I products shall not be
blended at a retail location with products commonly and commercially known as
casinghead gasoline, absorption gasoline, condensation gasoline, drip gasoline, or natural
gasoline.
(2) to (4) Repealed.
(5) To further avoid the perpetration of fraud upon the users and purchasers of
motor fuel offered for sale for highway vehicle use, the artificial coloring of such motor
fuel is absolutely prohibited, except in motor fuel having a research octane rating of
eighty-eight or better after coloring, as determined by the ASTM's research method.
(6) The sale of any product under any grade name that indicates to the purchaser
that it is of a certain automotive fuel rating or ASTM grade shall not be permitted unless
the automotive fuel rating or grade indicated in the grade name is consistent with the
value and meets the applicable requirements of ASTM. The AKI shall not be less than the
AKI posted on the product dispenser or as certified on the invoice, bill of lading, shipping
paper, or other documentation.
8-20-204.5. Motor fuel blends containing alcohol - purity. No motor fuel blend
containing alcohol derived from agricultural commodities and forest products shall be
sold for retail use unless the alcohol in such blend has a purity of at least ninety-nine
percent.
8-20-205. Specifications of kerosene. (Repealed)
8-20-206. Shipper notify director. (1) Any person who ships fuel products
included in classes I and II into the state, or who ships such fuel products from any
refinery or pipeline terminal within the state to another point within the state, shall notify
the director of the division of oil and public safety of the shipment within twenty-four
hours after the shipment has been billed for departure in the case of tank cars, or after the
shipment has been loaded for departure in the case of barrels, trucks, or tank wagons. At
the same time, such person shall forward to the director of the division of oil and public
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safety a true sample of the contents of the shipment weighing at least eight ounces, with
the specifications thereof and the number and initial of the tank car, or if some other
method of transportation is used, an adequate description of the means of conveyance or
container, so as to enable identification of the shipment. Any person who diverts a
shipment of such fuel products into the state of Colorado from outside the state shall give
the same notice and forward the same type of sample to the director of the division of oil
and public safety within twenty-four hours after the billing of the shipment is changed to
a Colorado destination.
(2) If more than one car of fuel products included in classes I and II is shipped at
the same time from the same source and refinery run, the director of the division of oil
and public safety may accept one sample for all or any part of such shipment.
8-20-206.5. Environmental response surcharge - liquefied petroleum gas and
natural gas inspection fund - definitions. (1) (a) Every first purchaser of odorized
liquefied petroleum gas, every manufacturer of fuel products who manufactures such
products for sale within Colorado or who ships such products from any point outside of
Colorado to a distributor within Colorado, and every distributor who ships such products
from any point outside of Colorado to a point within Colorado shall pay to the executive
director of the department of revenue, each calendar month, either twenty-five dollars per
tank truckload of fuel products delivered during the previous calendar month for sale or
use in Colorado or the fee for odorized liquefied petroleum gas as specified in paragraph
(d) of this subsection (1), whichever is applicable. Such payment shall be made on forms
prescribed and furnished by the executive director. The provisions of this section shall not
apply to fuel that is especially prepared and sold for use in aircraft or railroad equipment
or locomotives.
Editor's note: This version of paragraph (a) is effective until January 1, 2014.
(a) Every first purchaser of odorized liquefied petroleum gas, every manufacturer
of fuel products who manufactures such products for sale within Colorado or who ships
such products from any point outside of Colorado to a distributor within Colorado, and
every distributor who ships such products from any point outside of Colorado to a point
within Colorado shall pay to the executive director of the department of revenue, each
calendar month, either twenty-five dollars per tank truckload of fuel products delivered
during the previous calendar month for sale or use in Colorado or the fee for odorized
liquefied petroleum gas and natural gas as specified in paragraph (d) of this subsection
(1), whichever is applicable. Such payment shall be made on forms prescribed and
furnished by the executive director. The provisions of this section shall not apply to fuel
that is especially prepared and sold for use in aircraft or railroad equipment or
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locomotives.
Editor's note: This version of paragraph (a) is effective January 1, 2014.
(b) In the event the available fund balance in the petroleum storage tank fund is
greater than twelve million dollars, no surcharge shall be imposed, but if the available
fund balance in the fund is less than:
(I) Twelve million dollars, the fee imposed by paragraph (a) of this subsection (1)
shall be fifty dollars per tank truckload;
(II) Six million dollars, the fee imposed shall be seventy-five dollars per tank
truckload;
(III) Three million dollars, the fee imposed shall be one hundred dollars per tank
truckload.
(c) Notwithstanding paragraph (b) of this subsection (1), on and after July 1, 2018,
if the available fund balance in the petroleum storage tank fund is greater than eight
million dollars, no surcharge shall be imposed, but if the available fund balance in the
fund is less than eight million dollars, the fee imposed by paragraph (a) of this subsection
(1) shall be twenty-five dollars per tank truckload.
(d) Notwithstanding paragraph (b) of this subsection (1), the executive director of
the department of revenue shall have the authority to determine and adjust a fee for
odorized liquefied petroleum gas, not to exceed ten dollars per tank truckload.
Editor's note: This version of paragraph (d) is effective until January 1, 2014.
(d) Notwithstanding paragraph (b) of this subsection (1), the executive director of
the department of revenue shall have the authority to determine and adjust a fee for
odorized liquefied petroleum gas and natural gas, not to exceed ten dollars per tank
truckload for liquefied petroleum gas and liquefied natural gas and per every eight
thousand gallon equivalents for compressed natural gas.
Editor's note: This version of paragraph (d) is effective January 1, 2014.
(e) (I) There is hereby created the liquefied petroleum gas inspection fund within
the state treasury. Neither this section nor section 8-20.5-103 shall be construed to make
the liquefied petroleum gas inspection fund an enterprise fund. Such fund shall consist of:
(A) Liquefied petroleum gas inspection moneys collected pursuant to this article;
(B) Civil penalties collected as a result of court actions pursuant to section 8-20104;
(C) Any moneys appropriated to the fund by the general assembly; and
(D) Any moneys granted to the department from a federal agency or trade
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association for administration of the department's liquefied petroleum gas inspection
program.
(II) The executive director of the department of revenue shall adjust the fees
collected pursuant to this article so that the balance of unexpended and unencumbered
moneys in the liquefied petroleum gas inspection fund does not exceed the amount
necessary to accumulate and maintain in the liquefied petroleum gas inspection fund a
reserve sufficient to defray administrative expenses of the division of oil and public safety
for a period of two months.
(III) The moneys in the fund shall be subject to annual appropriation by the
general assembly. Moneys in the fund shall only be used for costs related to:
(A) Initial and subsequent inspections of liquefied petroleum gas installations;
(B) Proving, including calibrating and adjusting, liquefied petroleum gas meters
and dispensers;
(C) Abatement of fire and safety hazards at liquefied petroleum gas installations;
(D) Investigation of reported liquefied petroleum gas that requires state matching
dollars;
(E) Any federal program pertaining to liquefied petroleum gas that requires state
matching dollars;
(F) Liquefied petroleum gas product quality testing;
(G) Administrative costs, including costs for contract services; and
(H) Defraying the salaries and operating expenses incurred by the department of
labor and employment in the administration of this article as it pertains to liquefied
petroleum gas installations, meters, and dispensers. Such moneys shall be appropriated
for such purposes by the general assembly.
(IV) The moneys in the liquefied petroleum gas inspection fund and all interest
earned on the moneys in the fund shall remain in such fund and shall not be credited or
transferred to the general fund or any other fund at the end of any fiscal year.
Editor's note: This version of paragraph (e) is effective until January 1, 2014.
(e) (I) There is hereby created the liquefied petroleum gas and natural gas
inspection fund within the state treasury. Neither this section nor section 8-20.5-103 shall
be construed to make the liquefied petroleum gas and natural gas inspection fund an
enterprise fund. Such fund shall consist of:
(A) Liquefied petroleum gas and natural gas inspection moneys collected pursuant
to this article;
(B) Civil penalties collected as a result of court actions pursuant to section 8-20104;
(C) Any moneys appropriated to the fund by the general assembly; and
(D) Any moneys granted to the department from a federal agency or trade
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association for administration of the department's liquefied petroleum gas and natural gas
inspection program.
(II) The executive director of the department of revenue shall adjust the fees
collected pursuant to this article so that the balance of unexpended and unencumbered
moneys in the liquefied petroleum gas and natural gas inspection fund does not exceed
the amount necessary to accumulate and maintain in the liquefied petroleum gas and
natural gas inspection fund a reserve sufficient to defray administrative expenses of the
division of oil and public safety for a period of two months.
(III) The moneys in the fund shall be subject to annual appropriation by the
general assembly. Moneys in the fund shall only be used for costs related to:
(A) Initial and subsequent inspections of liquefied petroleum gas and natural gas
installations;
(B) Proving, including calibrating and adjusting, liquefied petroleum gas and
natural gas meters and dispensers;
(C) Abatement of fire and safety hazards at liquefied petroleum gas and natural
gas installations;
(D) Investigation of reported liquefied petroleum gas and natural gas that requires
state matching dollars;
(E) Any federal program pertaining to liquefied petroleum gas and natural gas that
requires state matching dollars;
(F) Liquefied petroleum gas and natural gas product quality testing;
(G) Administrative costs, including costs for contract services; and
(H) Defraying the salaries and operating expenses incurred by the department of
labor and employment in the administration of this article as it pertains to liquefied
petroleum gas and natural gas installations, meters, and dispensers. Such moneys shall be
appropriated for such purposes by the general assembly.
(IV) The moneys in the liquefied petroleum gas and natural gas inspection fund
and all interest earned on the moneys in the fund shall remain in such fund and shall not
be credited or transferred to the general fund or any other fund at the end of any fiscal
year.
Editor's note: This version of paragraph (e) is effective January 1, 2014.
(1.5) Notwithstanding the amount specified for any fee or surcharge in subsection
(1) of this section, the executive director by rule or as otherwise provided by law may
reduce the amount of one or more of the fees or surcharges if necessary pursuant to
section 24-75-402 (3), C.R.S., to reduce the uncommitted reserves of the fund to which
all or any portion of one or more of the fees or surcharges is credited. After the
uncommitted reserves of the fund are sufficiently reduced, the executive director by rule
or as otherwise provided by law may increase the amount of one or more of the fees or
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surcharges as provided in section 24-75-402 (4), C.R.S.
(2) The fee or surcharge imposed by subsection (1) of this section shall be
collected, administered, and enforced in the same manner as the fuel taxes imposed
pursuant to the provisions of article 27 of title 39, C.R.S., and the same penalty and
interest provisions shall apply.
(3) It is the duty of every manufacturer or distributor as described in subsection
(1) of this section to compute the amount of the surcharge payable on all tank truckloads
sold by him and separately state the surcharge due on statements issued with each
purchase of fuel. In the event that the manufacturer or distributor sells such fuel to a
retailer or consumer or consumes such fuel, he shall pay to the department of revenue the
surcharge imposed in subsection (1) of this section.
Editor's note: This version of subsection (3) is effective until January 1, 2014.
(3) (a) Except as set forth in paragraph (b) of this subsection (3), it is the duty of
every manufacturer or distributor as described in subsection (1) of this section to compute
the amount of the surcharge payable on all tank truckloads sold by the manufacturer or
distributor and separately state the surcharge due on statements issued with each purchase
of fuel. In the event that the manufacturer or distributor sells such fuel to a retailer or
consumer or consumes such fuel, the manufacturer or distributor shall pay to the
department of revenue the surcharge imposed in subsection (1) of this section.
(b) For compressed natural gas, the fuel distributor who reports the gallons for
purposes of paying the tax set forth in article 27 of title 39, C.R.S., shall pay the surcharge
imposed in subsection (1) of this section to the department of revenue.
Editor's note: This version of subsection (3) is effective January 1, 2014.
(4) For the purposes of this section:
(a) "Available fund balance" means the sum of the current year revenues and the
previous fund balance minus the sum of the obligations approved by the petroleum
storage tank committee pursuant to section 8-20.5-104 and the costs incurred by the
division of oil and public safety for purposes of administering articles 20 and 20.5 of this
title.
(b) "Fuel product" means gasoline, blended gasoline, gasoline sold for gasohol
production, gasohol, diesel, biodiesel blends, and special fuels, and special fuel mixes
with alcohol.
Editor's note: This version of paragraph (b) is effective until January 1, 2014.
(b) "Fuel product" means gasoline, blended gasoline, gasoline sold for gasohol
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production, gasohol, diesel, biodiesel blends, natural gas, and special fuels, and special
fuel mixes with alcohol.
Editor's note: This version of paragraph (b) is effective January 1, 2014.
(c) "Tank truckload" means eight thousand gallons or gallon equivalents.
Editor's note: Paragraph (c) is effective January 1, 2014.
(5) Repealed.
8-20-207. Method of tests. Tests made by the director of the division of oil and
public safety shall be made in accordance with the most recent standard methods of tests
of ASTM. The director of the division of oil and public safety is not required in every
case to make a complete analysis to ascertain every form of impurities, such as sulphur
and tar-like matter, but when, in the opinion of the director, a more complete analysis is
necessary or advisable, the director may make a detailed chemical analysis to determine
exactly the impurities or imperfections. The director in his or her discretion is authorized
to make inspections of petroleum products loaded for shipment into this state, at points
outside of this state.
8-20-208. Director to keep record. (1) The director of the division of oil and
public safety shall keep a record of all inspections made, showing:
(a) Time and place of each;
(b) Number of packages inspected;
(c) Number of gallons contained therein;
(d) Record of rejections;
(e) Record of fuel products destroyed.
(2) If any fuel products included in classes I and II have been rejected, such report
shall show the date and place thereof and quantity rejected, together with the name of the
person possessing it, together with a record from whom received. All such records shall
be open for public inspection.
8-20-209. Access to premises - records. (1) Any duly authorized agent or
employee of the division of oil and public safety shall have authority to enter in or upon
the premises of any manufacturer, vendor, or dealer in fuel products during regular
business hours and inspect any such product intended for sale or use.
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(2) Every distributor shall keep a complete and accurate record of the number of
gallons, as covered in classes I and II, sold by such distributor and of the number of
gallons of fuel used by such distributor, the date of such sales and of such use, and,
except in the case of retail sales through filling stations operated by such distributor, the
names and addresses of the purchasers.
8-20-210. Records of carriers - access. Every agent or employee of any railroad
company or other transportation company, having the custody of books or records
showing the shipment or receipt of fuel products, shall permit the director of the division
of oil and public safety or the director's agents and employees free access to such books
and records to determine the amount of fuel products shipped and received. All clerks,
bookkeepers, express agents or officials, railroad agents, employees of common carriers,
or other persons shall render to the director of the division of oil and public safety or the
director's employees all the assistance in their power when so requested in tracing,
finding, and inspecting such shipments.
8-20-211. Labeling visible containers. All visible containers and all devices used
for drawing class I product from underground or aboveground containers at filling
stations, garages, or other places where such products are sold or offered for sale shall be
stamped or labeled in a visible place with the letters and figures:
"State Inspected
(Date) ".
8-20-211.5. Labeling of containers. Throughout the state of Colorado, all visible
containers and all devices for drawing motor fuel blends containing class I fuel products
and at least two percent by volume of alcohol from underground containers at filling
stations, garages, or other places where such products are sold or offered for sale shall be
stamped or labeled in a visible place with information indicating the presence of alcohol
in the motor fuel blend. If the volume of ethanol exceeds ten percent, or if the volume of
methanol exceeds two percent, the stamp or label shall state the exact percentage. Such
information shall appear on the front of the pump in a position clear and conspicuous to
the driver's position, in at least one-half inch block letters, with information that identifies
the maximum percentage by volume to the nearest whole percent of ethanol or of
methanol or methanol with cosolvents.
8-20-212. Loading lines to be cleaned. Any loading or unloading line once used
for one class of fuel products shall not be used for loading or unloading other classes of
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fuel products until the lines have been thoroughly cleaned and approved by the director of
the division of oil and public safety.
8-20-213. Recycled or used motor oil - legislative declaration - definitions sale. (1) The general assembly hereby finds and declares that the used oil generated by
this state each year is a valuable resource that can be reused as an environmentally
acceptable re-refined product. The general assembly further finds that the disposal of
automotive engine oil and other lubricants is very costly, creates environmental and
health hazards, and depletes the state's and the nation's dwindling supply of petroleum. It
is the intent of the general assembly to reduce the amount of used oil that is improperly
disposed of and to increase the amount that is reused as a re-refined product.
(2) As used in this section, unless the context otherwise requires:
(a) "API service classification" means one of the two letter classification
performance ratings for engine oils, including re-refined oils, as determined by the
American petroleum institute.
(b) "Lubricant" means a lubricating oil as defined in paragraph (c) of this
subsection (2) or any other substance or mixture of substances used to reduce the friction
caused by automotive parts moving against each other.
(c) "Lubricating oil" means oil classified for use in an internal combustion engine,
hydraulic system, gear box, differential gear mechanism, or wheel bearing.
(d) "Recycled oil" means oil that is prepared for automotive use by reclaiming and
otherwise reprocessing used oil.
(e) "Re-refined oil" means used oil that has been refined using processing
technology to remove the physical and chemical contaminants acquired through use and
which, by itself or when blended with new lubricating oil or additives, meets applicable
API service classifications and SAE viscosity grades.
(f) "SAE viscosity grade" means the measure of an oil's, including a re-refined
oil's, resistance to flow at a given temperature, as determined by the society of automotive
engineers.
(g) "Used oil" means refined crude or synthetic oil that as a result of use has
become unsuitable for its original purpose due to loss of original properties or the
presence of impurities and that may be recycled in an economical manner and made
suitable for further use as an automotive lubricant.
(3) (a) It is unlawful for a person to package and sell a container of:
(I) Lubricant unless the container prominently displays the applicable API service
classification, API certification mark, and SAE viscosity grade of the contents; or
(II) Lubricant made wholly or partly from used or recycled oil unless the container
is plainly labeled as containing used or recycled oil.
(b) The label or advertising on a container of used or recycled oil shall accurately
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reflect the type of oil stored in such container.
(c) A person may represent a product made wholly or partly from re-refined oil to
be equal to or better than a similar product made from virgin oil if the product for sale
conforms with applicable API service classifications, API certification mark, and SAE
viscosity grades.
(d) Notwithstanding section 8-20-104, a person found guilty of violating this
subsection (3) shall be subject to a fine of not less than one hundred dollars and not more
than five hundred dollars for the first offense. A person found guilty of a second or
subsequent offense shall be enjoined from selling or distributing used oil for not less than
one year and not more than five years.
8-20-214. Inspectors - business forbidden. No person employed by the director
of the division of oil and public safety to make inspections under this part 2 shall engage
directly or indirectly in the business of dealing in petroleum products.
8-20-215. Mislabeling. No person shall mark, stencil, brand, or certify falsely any
pump, receptacle, or container of fuel products, or change, alter, or deface the mark,
brand, or a certificate on any such pump, receptacle, or container, or falsely represent the
quality or grade of any fuel product.
8-20-216. Unlawful to deceive purchaser. It is unlawful for any person, firm, or
corporation to store, sell, expose for sale, or offer for sale any liquid fuels, lubricating
oils, or other similar products, in any manner whatsoever, so as to deceive or tend to
deceive the purchaser as to the nature, price, quality, and identity of the products so sold
or offered for sale.
8-20-217. Sale of products not indicated. It is unlawful for any person to store,
keep, expose for sale, offer for sale, or sell from any tank or container, or from any pump
or other distributing device or equipment, any fuel or other similar products than those
indicated by the name, trade name, symbol, sign, or other distinguishing mark or device
of such fuel or other products, or by the name and address of the manufacturer of such
fuel product appearing upon the tank, container, pump, or other distributing equipment,
from which the same are sold, offered for sale, or distributed.
8-20-218. Calibration of transport, tank truck, or delivery trucks. (1) The
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director of the division of oil and public safety shall calibrate transport, trailer, and
delivery truck tanks to determine the legal capacity of each compartment, allowing for
expansion outage to conform to DOT regulations, except in the case of delivery truck
tanks where two percent outage will suffice. Each tank compartment shall have affixed
and spot-welded by the owner or operator thereof a capacity marker, which shall be set by
measuring with a steel rule from the bottom of a steel bar set across the fill opening to the
bottom of the marker (floated). The compartment gallonage shall be marked or stenciled
with paint in figures at least one inch in height on each compartment dome collar.
(2) All new or additional vehicular tanks purchased or leased after April 6, 1955,
by any person for hauling class I, II, or III petroleum products within or into the state
shall be calibrated by the director of the division of oil and public safety and a certificate
of calibration shall be issued to the owner or operator thereof before such equipment is
put in service. A copy of the certificate of calibration shall accompany the tank at all
times.
(3) Whenever a certificate of calibration has been lost or mutilated, the director of
the division of oil and public safety shall issue a duplicate of the original which shall
serve the purpose of the original. The director of the division of oil and public safety may
order, after proper inspection, a calibration or a recalibration of any transport, trailer, or
delivery truck tank operating in the state, whether calibrated by the director previously or
not, when inspection by the director or the director's deputy reveals that tank
compartments or capacity markers have been altered intentionally or accidentally, and the
owner or operator shall comply with such order within ten days. If the owner or operator
of a delivery truck tank has available calibrating equipment acceptable to the director of
the division of oil and public safety, the tanks shall be calibrated in the presence of the
director or the director's deputy, at or near the place of business of the owner or operator,
and the director shall issue a certificate of calibration for said tank.
8-20-219. Equipment - disguise unlawful. It is unlawful for any person, firm, or
corporation, to disguise or camouflage his equipment, by imitating the design, symbol, or
trade name of the equipment under which recognized brands of liquid fuels, lubricating
oils, and similar products are generally marketed.
8-20-220. Trade names - unlawful use. It is unlawful for any person, firm, or
corporation, to expose for sale, offer for sale, or sell, under any trademark or trade name
in general use, any liquid fuels, lubricating oils, or other like products, except those
manufactured or distributed by the manufacturer or distributor marketing liquid fuels,
lubricating oils, or other like products, under such trademark or trade names, or to
substitute, mix, or adulterate the liquid fuels, lubricating oils, or other similar products
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sold, offered for sale, or distributed under such trademark or trade name.
8-20-221. Assisting in violations. It is unlawful for any person to aid or assist any
other person in the violation of the provisions of this part 2, by depositing or delivering
into any tank, receptacle, or other container, any liquid fuels, lubricating oils, or like
products than those intended to be stored therein and distributed therefrom, as indicated
by the name of the manufacturer or distributor or the trade name or trademark of the
product displayed on the container itself, or on the pump, or on any other distributing
device in connection therewith.
8-20-222. Improvers of products. All materials, fluids, or substances offered for
sale or exposed for sale, purporting to be substances for, or improvers of, fuel products to
be used for power, heating, lubricating, or illuminating purposes, before being sold,
exposed, or offered for sale, shall be submitted to the director of the division of oil and
public safety for examination and inspection, and shall only be sold or offered for sale
when properly labeled with a label, the form and contents of which label has been
approved by the director in writing.
8-20-223. Containers - inspection. It is the duty of the director of the division of
oil and public safety and the director's deputies to inspect all containers or storage tanks
from which products of petroleum to be used for illuminating or power purposes are
retailed. When such containers or storage tanks are found to be placed in an unsafe
position or to contain water or foreign matter, the director shall make a written order to
have the same properly cleaned or removed, and upon failure of the owner to comply with
said order within ten days after the date thereof, the director shall confiscate and cause the
same to be destroyed or removed. All vendors of classes I, II, and III fuel products shall
have fire extinguishers in their establishments.
8-20-223.5. Emission inspection. (1) The director of the division of oil and
public safety shall conduct the emission inspection of any underground storage tank
which is required to have installed pollution control equipment. Such inspection shall
only be conducted in the ozone nonattainment area as defined pursuant to the authority
contained in section 25-7-107, C.R.S. Such inspection shall be for the purpose of
verifying the installation of such pollution control equipment and for the purpose of
assuring its proper use.
(2) The director of the division of oil and public safety shall contract with the
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department of public health and environment for the purpose of submitting inspection
reports, determining the frequency of certain inspections, assisting in the enforcement of
the "Colorado Air Quality Control Act" as it pertains to underground storage tank
pollution control equipment violations, and transmitting the payment for the costs of
administering the program aspects in the department of public health and environment.
(3) The fees paid pursuant to this subsection (3) shall be no more than necessary
to offset the direct cost of the inspection conducted pursuant to subsections (1) and (2) of
this section, but in no event more than twelve dollars.
8-20-224. Empty containers - removal. It is the duty of the director of the
division of oil and public safety or the director's deputies to notify the owner or person
having in his or her possession empty oil barrels and other containers which are stored or
placed in a position dangerous to property to remove the same to a place of safety.
8-20-225.
Measuring device - sealing - approval of prover and
procedure. (1) No person, or agent or employee of any person, shall use any meter or
mechanical device for the measurement of oil, gasoline, or liquid fuels unless the same
has been proved in a manner acceptable to the director of the division of oil and public
safety and sealed as correct by the director or one of the director's deputies. The director
and the director's deputies are further authorized, if any such meter or mechanical device
fails to comply with any of the provisions of this part 2, to seal the meter or mechanical
device in a manner that prohibits its use until such meter or mechanical device complies
with all of the provisions of this part 2, at which time the seal shall be removed by the
director or the director's deputies.
(2) The specifications, tolerances, and other technical requirements published in
the NIST handbook 44, "Specifications, Tolerances, and Other Technical Requirements
for Commercial Weighing and Measuring Devices", NIST handbook 130, "Uniform Laws
and Regulations in the area of legal metrology and engine fuel quality", and supplements
thereto or revisions thereof, shall apply to the provisions of this article, except as
modified or rejected by this article or any rule promulgated pursuant to this article.
8-20-226. False labels unlawful. No label upon, or invoice for, any lubricating oil
or grease shall contain any untrue or misleading statement, and any person, agent, or
employee of any person who substitutes any oil or grease for any other brand, without
notice, shall be subject to the penalties prescribed in section 8-20-104.
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8-20-227. Tests used. Where no tests are specified in this part 2, the most recent
tests prescribed, accepted, and considered as standards by ASTM or NIST shall be used.
8-20-228. Hazardous, dangerous conditions - duty of director. (1) It is the
duty of the director of the division of oil and public safety, whenever the director has
reasonable and probable grounds to believe that a hazardous or dangerous condition exists
due to deterioration of fuel products storage and piping facilities which are endangering
human and environmental life to determine the reason for the condition. The director may
order the person responsible for the hazardous or dangerous condition to take corrective
measures within a reasonable period of time to alleviate or eliminate the condition, and if
the measures are not taken within such time, the director may act to alleviate or eliminate
the same.
(2) If any person fails or refuses to comply with any such order of the director of
the division of oil and public safety, the director, in the name of the people of the state of
Colorado and through the attorney general, may apply to any district court having
jurisdiction for a mandatory injunction to compel compliance with such order to alleviate
or eliminate such hazardous or dangerous condition.
(3) The provisions of this part 2 shall not extend to nor be applicable to cities
which are organized under article XX of the state constitution. If any such city desires to
become subject to this part 2, the same may be accomplished by a resolution of the
legislative body of such city adopted in the usual manner.
8-20-229. Penalty. (Repealed)
8-20-230. Submittal of plans. (1) Plans for all installations utilizing liquid fuel
products, except for those liquid fuel products which are defined as regulated substances
and regulated pursuant to article 20.5 of this title, in storage containers of an aggregate of
over fifteen hundred gallons water capacity, including gasoline stations, garages, stores,
and all other places where said products are dispensed, shall be submitted to the director
of the division of oil and public safety for approval before construction begins.
(2) Plans for the preceding installations shall include:
(a) Provisions for extended protection against underground leaks due to corrosion,
erosion, electrolysis, galvanic action, soil shifting, soil compaction, and high groundwater
tables;
(b) Provisions for a containment of liquid fuels in the event of damage to fuel
dispensers and attendant piping;
(c) Provisions for safety of human and environmental life.
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8-20-231. Minimum standards. The design, construction, location, installation,
and operation of liquid fuel systems and equipment and the handling of liquid fuels shall
conform to the minimum standards as prescribed by the applicable sections of the current
edition of the national fire code published by the national fire protection association, as
revised by the association from time to time. The minimum standards as prescribed shall
also apply to marine and pipeline terminals, natural gasoline plants, refineries, tank farms,
underground storage facilities, aboveground storage facilities, and chemical plants
utilizing liquid fuels; except that the gallon limitations in such minimum standards shall
not apply to aboveground storage facilities associated with mining, oil and gas production
facilities, asphalt or concrete production, construction projects, and activities related
thereto. Copies of the codes shall be kept and maintained in the office of the director of
the division of oil and public safety at all times for examination by any interested person.
8-20-232. Method of sales. Petroleum products in liquid form shall be sold only
by metered liquid measure or by weight.
8-20-232.5. Method of sales of motor fuels - gallon equivalents - conversion
factors. (1) In addition to any other allowed unit of measurement, motor fuels may be
sold by gallon equivalents pursuant to the requirements of this section.
(2) (a) Any dispenser used for the sale of motor fuel in gallon equivalents shall
display gallon equivalents as the primary display information provided. Such dispenser
shall indicate the number of gallon equivalents and fractions of gallon equivalents sold,
the total sales price of the motor fuel dispensed, and the sales price per gallon equivalent
of motor fuel sold. Information concerning the sale of motor fuels by gallon equivalents
may be provided at the point of sale in literature, signs, or other advertisements. Street
sign advertisements regarding the sale of motor fuels by gallon equivalents may
abbreviate the term "gallon gasoline equivalent" as "gallon G.E." and the term "gallon
diesel equivalent" as "gallon D.E.".
(b) In addition to the information required by paragraph (a) of this subsection (2),
the face of a dispenser that is used for the sale of motor fuel in gallon equivalents shall
prominently display the conversion factor that is being used by the seller to determine the
number of gallon equivalents sold based upon the type and amount of actual measured
units of motor fuel that is dispensed. The information displayed on such a dispenser shall
include, but is not limited to, the following statements concerning the conversion factor:
(I) "One gallon diesel equivalent of (type of motor fuel) is equivalent to (amount
of actual units of measurement) of (type of motor fuel)."
(II) "One gallon diesel equivalent of (type of motor fuel) contains an average
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lower heating value of 128,000 BTUs of energy, but in no case contains a lower heating
value of less than 124,000 BTUs of energy."
(III) "One gallon gasoline equivalent of (type of motor fuel) is equivalent to
(amount of actual units of measurement) of (type of motor fuel)."
(IV) "One gallon gasoline equivalent of (type of motor fuel) contains an average
lower heating value of 114,000 BTUs of energy, but in no case contains a lower heating
value of less than 110,000 BTUs of energy."
(3) Any seller using gallon equivalents for motor fuel sales shall calculate the
conversion factor used by the seller to convert the actual units by which a motor fuel is
measured at the dispenser to gallon equivalent units based on the inferred energy content
of such motor fuel as measured by one of the following methods:
(a) For conversions to gallon diesel equivalents:
(I) If the motor fuel is actually measured at the dispenser as a volume, the gallon
diesel equivalent measurement shall be calculated by determining the number of
measured volumetric units required to provide an average lower heating value of one
hundred twenty-eight thousand BTUs (British thermal units), but in no case a lower
heating value of less than one hundred twenty-four thousand BTUs.
(II) If the motor fuel is actually measured at the dispenser as a mass, the gallon
diesel equivalent measurement shall be calculated by determining the number of
measured mass units required to provide an average lower heating value of one hundred
twenty-eight thousand BTUs (British thermal units), but in no case a lower heating value
of less than one hundred twenty-four thousand BTUs.
(b) For conversions to gallon gasoline equivalents:
(I) If the motor fuel is actually measured at the dispenser as a volume, the gallon
gasoline equivalent measurement shall be calculated by determining the number of
measured volumetric units required to provide an average lower heating value of one
hundred fourteen thousand BTUs (British thermal units), but in no case a lower heating
value of less than one hundred ten thousand BTUs.
(II) If the motor fuel is actually measured at the dispenser as a mass, the gallon
gasoline equivalent measurement shall be calculated by determining the number of
measured mass units required to provide an average lower heating value of one hundred
fourteen thousand BTUs (British thermal units), but in no case a lower heating value of
less than one hundred ten thousand BTUs.
(4) The actual unit of measurement for a motor fuel sold in terms of gallon
equivalents shall be calibrated by the seller with appropriate precision to ensure
conformance with any required dispensing accuracies.
(5) Repealed.
8-20-233. Declaration on invoice. (1) The sale of petroleum products shall
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include on the sales statement a definite, plain, and conspicuous declaration of:
(a) The quantity of goods sold;
(b) The weight or basis for measurement of either gross volume or volume
adjusted to standard temperature of sixty degrees Fahrenheit.
8-20-234. Temperature compensator permanent. Whenever a temperature
compensating meter is used to determine the amount of liquid fuels or liquefied
petroleum gas offered for sale in the liquid state, such compensating meter shall be
installed permanently on all meters within a geographical location owned by a user in
Colorado and used exclusively for at least a period of one year and the temperature
compensating devices shall not be disconnected, deactivated, or removed at any time
except for repairs or for tests by the director of the division of oil and public safety. If a
temperature compensating device is disconnected, deactivated, or removed for reasons
other than repair, it shall not be reactivated for a period of one year from the date of
removal. Notification of such removal or installation shall be in accordance with the
provisions of section 8-20-408 (2).
8-20-235.
Measuring gasoline and special fuel for sale to
distributors.
Notwithstanding any other provision of this part 2, the method of
determining gallonage of gasoline or special fuel sold to distributors, as defined in section
39-27-101 (7), C.R.S., shall be on a gross or net gallons basis at the option of the
distributor. Such election shall be for a twelve-month period.
PART 3
CONTAINERS OF GAS OR GASEOUS COMPOUNDS
8-20-301. Unlawful use of container. No person, firm, or corporation, except the
owner thereof or persons authorized in writing by the owner, shall sell or offer for sale, or
deliver any gas or gaseous compound used for heating or cooking, which is shipped,
consigned, or delivered in steel containers, or containers made of other metal, plastic, or
other substance, if such container bears upon the surface thereof, in plainly legible
characters the name, initials, or trademark of the owner. The term "gas or gaseous
compound" as used in this part 3 includes any material which is composed predominantly
of any of the following hydrocarbons, or mixtures of the same: Propane, propylene,
butanes, normal butane and isobutane, and butylenes.
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8-20-302. Refill container unlawful. No person, firm, or corporation, other than
the owner or person authorized by the owner shall refill or use in any manner a container
or receptacle which has imprinted thereon the name, initials, or trademark of the owner,
for any gas or gaseous compound used for cooking or heating.
8-20-303. Reuse of container unlawful. No person, firm, or corporation to whom
such gas or gaseous compound has been sold or delivered in such containers shall sell,
loan, deliver, or permit to be delivered such containers to any person other than such
owner, or persons authorized by such owner to receive the delivery of such containers.
8-20-304. Applicable - when. Sections 8-20-301 to 8-20-303 shall not apply to
any gas or gaseous compound referred to in section 8-20-301, contained in such
containers, unless the title to the containers is retained by the owner or his representative,
and unless the gas or gaseous substance contained in the containers is sold and delivered
upon the understanding and agreement that the container in which it was delivered shall
be returned to the owner or its representative when the contents have been used up by the
purchaser.
8-20-305. Penalty for violation. Any fuel distributor who fills a fuel tank with
liquified petroleum gas without the approval of the owner of the tank shall be liable in a
civil action for treble damages in addition to costs and reasonable attorney fees.
PART 4
LIQUEFIED PETROLEUM GAS - RULES
8-20-401. Definitions. As used in this part 4, unless the context otherwise
requires:
(1) Repealed.
(2) "GPA" means the gas processors association.
(3) "GPA 2140" means the publication number 2140 produced by the gas
processors association.
(4) and (5) Repealed.
(6) "Liquefied petroleum gas", referred to as LPG, means and includes any
material which is composed predominantly of any of the following hydrocarbons, or
mixtures of the same: Propane, propylene, butanes, normal butane or isobutane, and
butylenes.
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(7) Repealed.
(8) The definitions as set forth in section 8-20-201, except section 8-20-201 (1),
shall also apply to this part 4.
8-20-402. Rules of director. The director of the division of oil and public safety
shall make, promulgate, and enforce rules setting forth minimum general standards
consistent with the provisions of section 8-20-405 covering the design, construction,
location, installation, and operation of equipment for storing, handling, transporting,
dispensing, and utilizing liquefied petroleum gases, and specifying the odorization of said
gases and the degree thereof and the odorizing agent to be used therein. These rules shall
be such as are reasonably necessary for the protection of the health, welfare, and safety of
the public and persons using these materials and shall be in substantial conformity with
the generally accepted standards of safety concerning the same subject matter. Such rules
shall be adopted by the director of the division of oil and public safety only after a public
hearing thereon.
8-20-403. Penalty for violation. (Repealed)
8-20-404. Conflicting rules forbidden. No municipality or other political
subdivision shall adopt or enforce any ordinance or regulation in conflict with the
provisions of this part 4 or with the rules promulgated under section 8-20-402.
8-20-405. Minimum standards. (1) The design, construction, location,
installation, and operation of liquefied petroleum gas systems and equipment, and the
transportation and handling of liquefied petroleum gas, and the odorization of liquefied
petroleum gas, the degree thereof, and the odorizing agent to be used therein, shall
conform to the minimum standards therefor as prescribed by the applicable sections of the
2001 edition of the national fire code published by the national fire protection association,
as revised by the association from time to time. The minimum standards as prescribed in
this section shall also apply to marine and pipeline terminals, natural gasoline plants,
refineries, tank farms, underground storage facilities such as salt and coal mines,
aboveground storage facilities, and to chemical plants utilizing liquefied petroleum gas in
the manufacture of their products. Copies of the pamphlets shall be kept and maintained
in the office of the director of the division of oil and public safety at all times for
examination by any interested person.
(2) Any changes to any standards promulgated by the national fire protection
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association after January 1, 2003, shall be reviewed by the director of the division of oil
and public safety. After such review, the director may adopt such changes by rule.
8-20-406. Submittal of plans. (1) Plans for all installations utilizing liquefied
petroleum gas storage containers of over two thousand gallons water capacity shall be
submitted to the director of the division of oil and public safety for approval before
construction of such installations begins.
(2) Plans for any of the following shall be submitted to the director of the division
of oil and public safety for approval before installation:
(a) Service stations supplying liquefied petroleum gas for motor fuel;
(b) Installations for filling of cylinders (bottles) or other portable containers
meeting surface transportation board specifications;
(c) Industrial bulk storage installations and all other bulk storage installations
utilizing storage containers for liquefied petroleum gas of over two thousand gallons
aggregate water capacity.
8-20-407. Reports of accidents. (1) Reports of accidents, fires, explosions,
injuries, damage to property, or loss of life at installations using liquefied petroleum gas
shall be reported to the director of the division of oil and public safety within twenty-four
hours after their occurrence.
(2) Subsection (1) of this section includes accidents resulting from the improper
use of equipment, appliances, and appurtenances to liquefied petroleum gas systems. The
director of the division of oil and public safety may, at his or her discretion, investigate
such occurrences and shall maintain a written record of his or her findings, which shall be
available to public examination.
8-20-408. Meter inspection. (1) No person, firm, partnership, or corporation
shall use a liquefied petroleum gas liquid metering system for the sale of liquefied
petroleum gas unless the system has been inspected, approved, and sealed by the director
of the division of oil and public safety. Operation or use of a liquefied petroleum gas
liquid metering system that has not been properly inspected and sealed constitutes a
violation of sections 8-20-405 to 8-20-411, except under the circumstances outlined in
subsection (2) of this section.
(2) The director of the division of oil and public safety shall be notified
immediately when a new metering system is placed in service or when the seal on an
operating metering system is broken for any purpose. Such systems may be operated on a
temporary basis until reinspected and sealed by the director of the division of oil and
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public safety. Upon such notification, it is the responsibility of the director of the division
of oil and public safety to make a field inspection within a reasonable period of time.
8-20-409. Requirements for appliances.
(1) (Deleted by amendment, L. 2003, p. 1827, § 17, effective May 21, 2003.)
(2) Appliances and components shall not be used or installed unless certified by or
listed in standards established by rules promulgated by the director of the division of oil
and public safety pursuant to section 8-20-102.
8-20-410. Tank delivery truck, semitrailer, or truck trailer for bulk
storage. No tank delivery truck, semitrailer, or truck trailer shall be used as a bulk storage
plant for liquefied petroleum gas unless the same has been inspected and approved by the
director of the division of oil and public safety.
8-20-411. Location and charging of containers. (1) Permanently installed
American petroleum institute-American society of mechanical engineers or United States
department of transportation containers or surface transportation board containers
provided with excess flow or back-flow check valves shall be located and filled in
accordance with the applicable requirements of basic rules of the national fire code
described in section 8-20-405. Private streets, roads, or rights-of-way shall not be classed
as public streets or highways for the purpose of sections 8-20-405 to 8-20-411.
(2) DOT containers not provided with excess flow or back-flow check valves shall
not be filled within the limits or boundaries of an area in which two or more mobile
vehicles are situated. Such containers shall be filled in accordance with the applicable
provisions of basic rules and of the national fire code, at a properly equipped container
filling plant. Such plant shall be located at least fifty feet from the nearest trailer,
important building, or line of property that may be built upon, and at least twenty-five feet
from any public road, street, or highway. Such filling plant shall be enclosed by manproof fencing or otherwise protected from tampering or physical damage. The area shall
be kept locked when unattended.
(3) Container charging operations shall be performed only by qualified personnel.
8-20-412. Violations of sections 8-20-405 to 8-20-414. (Repealed)
8-20-413.
Specifications of liquefied petroleum gas as defined in GPA
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2140. (1) Liquefied petroleum gas shall comply with the specifications of GPA 2140,
"liquefied petroleum gas specification", as revised as of January 1, 2003, including
revisions that refer to ASTM international test of specifications.
(2) (Deleted by amendment, L. 2003, p. 1827, § 20, effective May 21, 2003.)
(3) Any changes to any standards promulgated by the GPA after January 1, 2003,
shall be reviewed by the director of the division of oil and public safety. After such
review, the director may adopt any such changes by rule.
8-20-414.
Restrictions on use of butane and butane-propane
mixtures. Liquefied petroleum gas containing more than five percent liquid volume
butane or butylenes shall be designated as butane-propane mixtures and shall be sold for
use only in those applications approved by the director of the division of oil and public
safety and for which special use permits have been granted.
8-20-415. Liability limited. (1) No legal action shall be commenced or
maintained against any person engaged in this state in the business of selling at retail,
supplying, handling, or transporting liquefied petroleum gas if the alleged injury, damage,
or loss was caused by:
(a) The alteration, modification, or repair of liquefied petroleum gas equipment or
a liquefied petroleum gas appliance if the alteration, modification, or repair was done
without the knowledge and consent of the liquefied petroleum gas seller, supplier,
handler, or transporter; or
(b) The use of liquefied petroleum gas equipment or a liquefied petroleum gas
appliance in a manner or for a purpose other than that for which the equipment or
appliance was intended and that could not reasonably have been expected.
(2) A person who follows the applicable procedures established by the standards
of the national fire code pursuant to section 8-20-405 as adopted by the director of the
division of oil and public safety and rules promulgated pursuant to section 8-20-402 shall
not be deemed to be grossly negligent or willful and wanton.
PART 5
UNDERGROUND STORAGE TANKS
8-20-501 to 8-20-513. (Repealed)
PART 6
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UNDERGROUND STORAGE TANK INSTALLERS
8-20-601 to 8-20-608. (Repealed)
PART 7
ABOVEGROUND STORAGE TANKS
8-20-701 to 8-20-705. (Repealed)
PART 8
COLORADO ANTIFREEZE LAW
8-20-801. Short title. This part 8 shall be known and may be cited as the
"Colorado Antifreeze Law".
8-20-802. Definitions. As used in this part 8, unless the context otherwise
requires:
(1) "Antifreeze" means all substances and preparations intended for use as the
cooling medium, or to be added to the cooling liquid, in the cooling system of internal
combustion engines to prevent freezing of the cooling liquid or to lower its freezing point.
(2) "Person" means individuals, partnerships, corporations, companies, and
associations.
8-20-803.
Annual inspection of sample - permit authorizing sale reinspection. (1) Before any antifreeze is sold, exposed for sale, or held with intent to
sell within this state, a sample thereof must be inspected annually by the director of the
division of oil and public safety at an inspection laboratory designated by the director of
the division of oil and public safety. Upon application of the manufacturer, packer, seller,
or distributor, and the payment of a fee not to exceed twenty-five dollars for each sample
of antifreeze submitted, the director of the division of oil and public safety shall inspect
the antifreeze submitted as set forth in this subsection (1), but in no case shall an
approved antifreeze be inspected more than one time for each antifreeze marketing year
beginning May 1 and ending April 30, except as set forth in this section.
(2) If the antifreeze is not adulterated or misbranded, meets the standards of the
director of the division of oil and public safety, and is not in violation of this part 8, the
director of the division of oil and public safety shall give the applicant a written permit
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authorizing the sale by any person of such antifreeze in this state for the marketing year
for which the inspection fee is paid. If the director of the division of oil and public safety
at a later date finds that the product to be sold, exposed for sale, or held with intent to sell
has been materially altered or adulterated, or that a change has been made in the name,
brand, or trademark under which the antifreeze is sold, or that it violates the provisions of
this part 8, the director of the division of oil and public safety shall notify the applicant
and the permit shall be cancelled.
(3) In the event a manufacturer, packer, seller, or distributor changes the
composition, content, or formula of any antifreeze which the manufacturer, packer, seller,
or distributor is marketing under a permit from the director of the division of oil and
public safety, it is the duty of said manufacturer, packer, seller, or distributor to
immediately notify the director of the division of oil and public safety and submit a
sample for test in compliance with this section.
8-20-804. When deemed adulterated. (1) An antifreeze shall be deemed to be
adulterated:
(a) If it consists in whole or in part of any substances which will render it
injurious to the cooling system of an internal combustion engine or will make the
operation of any internal combustion engine dangerous to the user; or
(b) If its strength, quality, or purity falls below the standard of strength, quality, or
purity under which it is sold.
8-20-805. When deemed misbranded. (1) Antifreeze shall be deemed to be
misbranded:
(a) If its labeling is false or misleading in any particular; or
(b) If in package form it does not bear a label containing the name and place of
business of the manufacturer, packer, seller, or distributor, and an accurate statement of
the quantity of the contents in terms of weight or measure on the outside of the package.
8-20-806. Director to enforce. The director of the division of oil and public
safety shall enforce the provisions of this part 8 by inspections, chemical analysis, or any
other appropriate methods. All samples for inspection or analysis shall be taken from the
stocks in the state or intended for sale in the state, or the director of the division of oil and
public safety, through his or her agents, may call upon the manufacturer or distributor
applying for an inspection of antifreeze to supply such samples thereof for analysis. The
director of the division of oil and public safety, or his or her agents, shall have free access
during business hours to all places of business, buildings, vehicles, cars, and vessels used
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in the manufacture, transportation, sale, or storage of any antifreeze, and may open any
box, carton, parcel, or package containing or supposed to contain any antifreeze and may
take samples for analysis.
8-20-807. Rules. The director of the division of oil and public safety has authority
to promulgate such rules as are necessary to promptly and effectively enforce the
provisions of this part 8.
8-20-808. List of brands may be furnished. The director of the division of oil
and public safety may furnish, upon request, a list of the brands and trademarks of
antifreeze inspected by the director during the marketing year that have been found to be
in accord with this part 8.
8-20-809. False advertising prohibited. No advertising literature relating to any
antifreeze in this state shall contain any statement that the antifreeze advertised for sale
has been approved by the director of the division of oil and public safety unless the said
antifreeze has been inspected by the director of the division of oil and public safety and
found to meet the standards of the division of oil and public safety and not to be in
violation of this part 8, in which case such statement may be contained in any advertising
literature where such brand or trademark of antifreeze is being advertised for sale.
8-20-810. District attorney to bring actions. Whenever the director of the
division of oil and public safety discovers any antifreeze is being sold or has been sold in
violation of this part 8, it is the director's duty to bring this violation to the attention of the
district attorney in the director's respective district, or the attorney general in cases where
the district attorney refuses to act, to enforce the provisions of this part 8 by appropriate
action in courts of competent jurisdiction.
8-20-811. Disposition of fees. All fees provided for in this part 8 shall be
collected by the department of revenue and remitted to the state treasurer to be credited to
the general fund of the state.
8-20-812. Penalty. If any person violates the provisions of this part 8, or fails to
comply with any of the provisions of this part 8, such person is guilty of a misdemeanor
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and, upon conviction thereof, shall be punished by a fine of not less than fifty dollars nor
more than three hundred dollars for each offense.
PART 9
BRAKE FLUID
8-20-901. Sale of approved brake fluid. It is unlawful for any person,
partnership, corporation, or association to sell or offer for sale brake fluid for automotive
use which has not been approved by the director of the division of oil and public safety.
8-20-902. Brake fluid specifications - list of approved brands. The director of
the division of oil and public safety shall establish specifications or requirements for
approved-type brake fluid; but the specifications or requirements shall not be lower in
standard than the specifications and requirements of the society of automotive engineers,
numbered J-70 b, approved May, 1963. The director shall compile and furnish upon
request a list of brands and trademarks of brake fluid inspected by the director that have
been so approved.
8-20-903. District attorney to bring actions. Whenever the director of the
division of oil and public safety discovers that any person, partnership, corporation, or
association has sold or is offering for sale any brake fluid that does not conform to the
minimum specifications established, the director shall notify the seller to immediately
discontinue the sale of such nonconforming brake fluid. If such seller continues to offer
the same for sale, it is the duty of the director to bring such violation to the attention of
the district attorney in such respective district to enforce the provisions of this part 9 by
appropriate action or injunctive relief in courts of competent jurisdiction.
8-20-904. Penalty. If any person, partnership, corporation, or association violates
the provisions of this part 9, or fails to comply with any of the provisions of this part 9,
such person, partnership, corporation, or association is guilty of a misdemeanor and, upon
conviction thereof, shall be punished by a fine of not less than fifty dollars nor more than
three hundred dollars for each offense.
PART 10
AMUSEMENT RIDES
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8-20-1001. Definitions. As used in this part 10, unless the context otherwise
requires:
(1) "Amusement ride" means a ride or device, or a combination of rides or
devices, as defined by rule of the division; except that "amusement ride" shall not include
inflatable amusement rides.
(2) "Certificate of inspection" means documentation of an amusement ride
inspection conducted by an inspector.
(3) "Director" means the director of the division or his or her designee.
(4) "Division" means the division of oil and public safety within the department of
labor and employment.
(5) "Injury" means an injury that results in death or requires medical treatment
administered by a physician or by registered professional personnel under the standing
orders of a physician. For purposes of this subsection (5), "medical treatment" does not
include first aid treatment or one-time treatment and subsequent observation of minor
scratches, cuts, burns, splinters, or other minor injuries that do not ordinarily require
medical care even though treatment is provided by a physician or by registered
professional personnel.
(6) "Inspection" means a procedure conducted by an inspector to determine
whether an amusement ride is being constructed, assembled, maintained, tested, operated,
or inspected in accordance with the division's standards, the manufacturer's standards and
criteria, or the insurer's standards, whichever is the most stringent, and that determines the
current operational safety of the amusement ride.
(7) "Inspector" means a person certified to inspect amusement rides under criteria
determined by rule of the division.
(8) "Operator" means an individual, corporation, or company or agent thereof who
owns or controls, or has the duty to control, the operation of an amusement ride.
(9) "Registration" means the filing of a properly completed application with the
division and approval of the application by the director.
8-20-1002. Duties of director - standards - certification of inspectors - fees rules. (1) The director shall promulgate rules for the registration, construction, repair,
and maintenance of amusement rides and for the financial responsibility of operators. The
rules shall require operators to submit a periodic certificate of inspection to the division
for each amusement ride. The director shall establish minimum standards for the
certification of inspectors and shall require each operator to submit the inspector's
qualifications to the division with an annual registration application. The inspector for
each amusement ride shall be an independent third-party inspector.
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(2) The director shall establish annual registration fees by rule to cover the costs
of the division's oversight of amusement rides. All fees collected by the division pursuant
to this section shall be transmitted to the state treasurer, who shall credit the same to the
public safety inspection fund created by section 8-1-151.
(3) The director may prohibit the operation of an amusement ride that does not
meet the registration, construction, repair, inspection, and maintenance requirements
established by the division pursuant to subsection (1) of this section.
8-20-1003. Notification to division. (1) The operator of an amusement ride shall
notify the division, within such times and in such manner as established by rule of the
director, regarding:
(a) Any injury caused by an equipment failure of an amusement ride;
(b) The installation of any new amusement rides; and
(c) The schedule for the location of the operation of amusement rides.
8-20-1004. Rules. The director has the authority to promulgate rules as necessary
for the implementation of this part 10.
ARTICLE 20.5
Petroleum Storage Tanks
PART 1
ADMINISTRATION
8-20.5-101. Definitions. As used in this article, unless the context otherwise
requires:
(1) "Abandoned tank" means an underground or aboveground petroleum storage
tank that the current tank owner or operator or current property owner did not install, has
never operated or leased to another for operation, and had no reason to know was present
on the site at the time of site acquisition.
(2) (a) "Aboveground storage tank" means any one or a combination of containers,
vessels, and enclosures, including structures and appurtenances connected to them,
constructed of nonearthen materials, including but not limited to concrete, steel, or
plastic, which provide structural support, used to contain or dispense fuel products and
the volume of which, including the pipes connected thereto, is ninety percent or more
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above the surface of the ground.
(b) "Aboveground storage tank" does not include:
(I) A wastewater treatment tank system that is part of a wastewater treatment
facility;
(II) Equipment or machinery that contains regulated substances for operational
purposes;
(III) (A) Farm and residential tanks or tanks used for horticultural or floricultural
operations.
(B) Nothing in sub-subparagraph (A) of this subparagraph (III), as amended by
House Bill 05-1180, as enacted at the first regular session of the sixty-fifth general
assembly, shall be construed as changing the property tax classification of property
owned by a horticultural or floricultural operation.
(IV) Aboveground storage tanks located at natural gas pipeline facilities that are
regulated under state or federal natural gas pipeline acts;
(V) Aboveground storage tanks associated with natural gas liquids separation,
gathering, and production;
(VI) Aboveground storage tanks associated with crude oil production, storage, and
gathering;
(VII) Aboveground storage tanks at transportation-related facilities regulated by
the federal department of transportation;
(VIII) Aboveground storage tanks used to store heating oil for consumptive use on
the premises where stored;
(IX) Aboveground storage tanks used to store flammable and combustible liquids
at mining facilities and construction and earthmoving projects, including gravel pits,
quarries, and borrow pits where, in the opinion of the director of the division of oil and
public safety, tight control by the owner or contractor and isolation from other structures
make it unnecessary to meet the requirements of this article;
(X) Any other aboveground tank excluded by regulation.
(2.5) "Alternative fuel" means a motor fuel that combines petroleum-based fuel
products with renewable fuels.
(3) "Closure" means the abandonment of an underground storage tank in place or
the removal and disposal of an underground storage tank.
(4) "Department" means the department of labor and employment, created in
section 24-1-121, C.R.S.
(5) "Designee" means a qualified municipality, city, home rule city, city and
county, county, fire protection district, or any other political subdivision of the state,
including a county or district public health agency created pursuant to section 25-1-506,
C.R.S., which county or district public health agency is acting under agreement or
contract with the department for the implementation of the provisions of this article.
(5.5) "Fee lands" means land owned in fee simple within the exterior boundaries
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of the Southern Ute Indian reservations in Colorado. "Fee land" does not mean land
owned by an Indian tribe or the federal government or held in trust by the federal
government for the use or benefit of an Indian tribe or its members.
(6) "Fuel products" means all gasoline, aviation gasoline, diesel, aviation turbine
fuel, jet fuel, fuel oil, biodiesel, biodiesel blends, kerosene, all alcohol blended fuels, gas
or gaseous compounds, and other volatile, flammable, or combustible liquids, produced,
compounded, and offered for sale or used for the purpose of generating heat, light, or
power in internal combustion engines or fuel cells, for cleaning or for any other similar
usage.
(7) "Municipality" means any city or any town operating under general or special
laws of the state of Colorado or any home rule city or town, the charter or ordinances of
which contain no provisions inconsistent with the provisions of part 3 of this article.
(8) "Operator" means any person in control of, or having responsibility for, the
operation of an underground or aboveground storage tank.
(9) "Orphan tank" means an underground storage tank which is:
(a) Owned or operated by an unidentified owner as defined in this article; or
(b) No longer in use and was not closed in accordance with the procedures
required by this article and the property has changed ownership prior to December 22,
1988, and such property is no longer used to dispense fuels.
(10) (a) "Owner" means:
(I) In the case of an underground storage tank in use on or after November 8,
1984, or brought into use after that date, any person who owns an underground storage
tank used for the storage, use, or dispensing of regulated substances;
(II) In the case of an underground storage tank in use before November 8, 1984,
but no longer in use on or after November 8, 1984, any person who owned such tank
immediately before the discontinuation of its use; or
(III) Any person who owns an aboveground storage tank.
(b) For purposes of corrective action for petroleum releases, the term "owner"
does not include any person who, without participating in the management of an
underground storage tank and otherwise not engaged in petroleum production, refining,
and marketing, holds indicia of ownership primarily to protect a security interest in or lien
on the tank or the property where the tank is located.
(11) "Person" means any individual, trust, firm, joint-stock company, corporation
(including a government corporation), partnership, association, commission, municipality,
state, county, city and county, political subdivision of a state, interstate body, consortium,
joint venture, commercial entity, or the government of the United States.
(12) "Property owner" means a person having a legal or equitable interest in real
or personal property that is subject to this article.
(13) "Regulated substance" means:
(a) Any substance defined in section 101 (14) of the federal "Comprehensive
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Environmental Response, Compensation, and Liability Act of 1980", as amended, but not
including any substance regulated as a hazardous waste under subtitle (C) of Title II of
the federal "Resource Conservation and Recovery Act of 1976", as amended;
(b) Petroleum, including crude oil, and crude oil or any fraction thereof that is
liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute);
(c) Alternative fuel; or
(d) Renewable fuel.
(14) "Release" means any spilling, leaking, emitting, discharging, escaping,
leaching, or disposing of a regulated substance from an underground storage tank into
groundwater, surface water, or subsurface soils.
(14.5) "Renewable fuel" means a motor vehicle fuel that is produced from plant or
animal products or wastes, as opposed to fossil fuel sources.
(15) "Reportable quantities" means quantities of a released regulated substance
which equal or exceed the reportable quantity under the federal "Comprehensive
Environmental Response, Compensation, and Liability Act of 1980", as amended, and
petroleum products in quantities of twenty-five gallons or more.
(16) "Tank" means a stationary device designed to contain an accumulation of a
regulated substance, constructed primarily of nonearthen materials which provide
structural support including, but not limited to, wood, concrete, steel, or plastic.
(17) (a) "Underground storage tank" means any one or combination of tanks,
including underground pipes connected thereto, except those identified in paragraph (b)
of this subsection (17), that is used to contain an accumulation of regulated substances
and the volume of which, including the volume of underground pipes connected thereto,
is ten percent or more beneath the surface of the ground.
(b) "Underground storage tank" does not include:
(I) Any farm or residential tank with a capacity of one thousand one hundred
gallons or less used for storing motor fuel for noncommercial purposes;
(II) Any tank used for storing heating oil for consumptive use on the premises
where stored;
(III) Any septic tank;
(IV) Any pipeline facility, including its gathering lines, regulated under the
federal "Natural Gas Pipeline Safety Act of 1968", as amended, or the federal "Hazardous
Liquid Pipeline Safety Act of 1979", as amended, or regulated under Colorado law if such
facility is an intrastate facility;
(V) Any surface impoundment, pit, pond, lagoon, or landfill;
(VI) Any storm-water or wastewater collection system;
(VII) Any flow-through process tank;
(VIII) Any liquid trap or associated gathering lines directly related to oil or gas
production and gathering operations;
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(IX) Any storage tank situated in an underground area, such as a basement, cellar,
mine-working, drift, shaft, or tunnel area, if the tank is situated upon or above the surface
of the floor;
(X) Any pipes connected to any tank described in subparagraphs (I) to (IX) of this
paragraph (b); or
(XI) Any other underground tank excluded by regulation.
(18) "Upgrade" means the addition or retrofit of some systems such as cathodic
protection, lining, modification of the system piping, or spill and overfill controls to
improve the ability of a petroleum storage tank system to prevent the release of product.
8-20.5-102. Registration - fees. (1) Each owner or operator of an underground or
aboveground storage tank shall register such tank with the director of the division of oil
and public safety within thirty days after the first day on which the tank is actually used to
contain a regulated substance or, in the case of an aboveground storage tank, on or before
July 1, 1993, or, thereafter, within thirty days after the first day on which the tank is
actually used to contain a regulated substance. Each owner or operator shall renew such
registration annually on or before the calendar day and month of initial registration for
each year in which the storage tank is in use. An underground storage tank is considered
to be in use at all times, except when the tank has been either removed from the ground or
permanently closed in accordance with the rules promulgated pursuant to section 8-20.5202 (1.5) that relate to the closure of such tanks.
(2) To register or renew registration of an underground or aboveground storage
tank, the owner or operator of the tank shall submit to the director of the division of oil
and public safety a completed registration or renewal form and payment of the fee
established in subsection (3) of this section. The director of the division of oil and public
safety shall provide registration and renewal forms.
(3) The registration and renewal fee shall be thirty-five dollars for each tank for
each year. The fees collected pursuant to this subsection (3) shall be credited to the
petroleum storage tank fund created in section 8-20.5-103.
(4) The director of the division of oil and public safety shall collect delinquent
registration and renewal fees and assess a penalty of up to twice the amount of such fees
and reasonable costs associated with the collection of such fees.
8-20.5-103.
Petroleum storage tank fund - petroleum cleanup and
redevelopment fund - creation - rules - repeal. (1) There is hereby created in the state
treasury the petroleum storage tank fund, which is an enterprise fund. The fund consists
of the following:
(a) Registration and annual renewal fees collected from owners or operators of
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aboveground and underground storage tanks pursuant to section 8-20.5-102 (3);
(b) Repealed.
(c) Fees collected pursuant to section 8-20.5-102 (4);
(d) Surcharge funds collected pursuant to section 8-20-206.5;
(e) Moneys reimbursed to the department in payment for costs incurred in the
investigation of a release and performance of corrective action pursuant to section 8-20.5209;
(f) Any moneys appropriated to the fund by the general assembly;
(g) Any moneys granted to the department from a federal agency for
administration of the underground storage tank program; and
(h) Moneys from bonds issued pursuant to subsection (8) of this section.
(2) (a) The moneys in the petroleum storage tank fund and all interest earned on
moneys in the fund shall not be credited or transferred to the general fund at the end of
the fiscal year.
(b) (I) Notwithstanding any provision of paragraph (a) of this subsection (2) to the
contrary, on March 27, 2002, the state treasurer shall deduct four million dollars from the
petroleum storage tank fund and transfer such sum to the general fund.
(II) In order to restore the amount transferred from the petroleum storage tank
fund pursuant to subparagraph (I) of this paragraph (b), moneys from the general fund
shall be transferred to the petroleum storage tank fund in accordance with section 24-75217, C.R.S.
(3) The moneys in the petroleum storage tank fund shall be continuously
appropriated to the division of oil and public safety; except that moneys for the purposes
specified in paragraphs (b), (f), and (g) of this subsection (3) shall be subject to annual
appropriation by the general assembly. The fund shall be used for:
(a) Petroleum corrective action purposes and third-party liability where the costs
exceed the minimum financial responsibility requirements of the owner or operator
provided for in section 8-20.5-206; except that moneys from the fund may not be used for
initial abatement and corrective action regarding fuels that are especially prepared and
sold for use in aircraft or railroad equipment or locomotives;
(b) Administrative costs, limited each year to the amount of the registration fee
stated in section 8-20.5-102, including costs for contract services and costs related to the
delegation of duties to units of local government which are incurred by the department of
labor and employment in carrying out administrative responsibilities pursuant to this
article;
(c) Any costs related to the abatement of fire and safety hazards as ordered by the
director of the division of oil and public safety pursuant to section 8-20.5-208 (3);
(d) Investigation of releases or suspected releases and performance of corrective
action for petroleum releases by the department or its designated agent pursuant to section
8-20.5-209;
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(e) Any federal program pertaining to petroleum underground storage tanks,
which program requires state-matching dollars;
(f) (I) Costs related to petroleum storage tank facility inspections and meter
calibrations.
(II) This paragraph (f) is repealed, effective July 1, 2018.
(g) Administrative costs necessary for the implementation of this article and
section 8-20-206.5.
(3.5) Moneys in the petroleum storage tank fund may be used as incentives to
underground storage tank owners and operators to upgrade existing systems. The division
of oil and public safety shall promulgate rules to implement this subsection (3.5).
(4) Appropriations of moneys out of the fund for the purpose of initial abatement
response or for corrective action purposes in the cleanup of releases shall be used only for
those stated purposes and shall not be used for any administrative costs incurred by the
department. Any amounts used for initial abatement response or for corrective action
purposes shall be reported annually to the general assembly and the joint budget
committee.
(5) Subject to section 8-20.5-104, the fund shall be available only to those
underground and aboveground storage tanks owners or operators who are in compliance
with the provisions of section 8-20.5-209 and regulations promulgated pursuant to
sections 8-20.5-202 and 8-20.5-302.
(6) Moneys in the petroleum storage tank fund shall not be used:
(a) Repealed.
(b) To fund any programs that are not specifically stated within this section.
(7) (a) Subject to sections 8-20.5-206 (6) and 8-20.5-303 (6), owners and
operators of underground and aboveground storage tanks on fee lands shall be eligible for
access to the fund if the tank owner or operator:
(I) Has registered such tanks pursuant to section 8-20.5-102 and paid the
surcharges imposed by section 8-20-206.5;
(II) Can demonstrate that the owner or operator is in compliance with the rules
promulgated pursuant to sections 8-20.5-202 and 8-20.5-302; and
(III) Can demonstrate that the owner or operator has complied with sections 820.5-209 and 8-20.5-304 and any other rules, policies, and procedures of the department
concerning corrective action.
(b) Underground and aboveground storage tank owners and operators who have
been denied access to the fund prior to July 1, 2005, based upon a determination that the
tanks are on fee lands, are eligible to reapply for reimbursement from the fund if the
application is filed prior to December 31, 2005, and is not barred by settlement or other
agreement.
(c) Nothing in this subsection (7) shall be construed to modify the department's
authority to regulate operation of or corrective action for underground and aboveground
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storage tanks on fee lands.
(8) The executive director of the department is authorized to issue bonds to
reimburse assessment and corrective action costs to remediate petroleum contamination.
The petroleum storage tank committee may temporarily raise such bonding limits in the
event of extraordinary circumstances or environmental conditions.
(9) (a) There is hereby created in the state treasury the petroleum cleanup and
redevelopment fund, which is referred to in this subsection (9) as the redevelopment fund.
The redevelopment fund's sources of revenue are:
(I) Civil penalties collected pursuant to section 8-20.5-107;
(II) Any public or private gifts, grants, or donations to the redevelopment fund
received by the department;
(III) Any legislative appropriations made to the redevelopment fund; and
(IV) Earned interest, which the state treasurer shall deposit in the redevelopment
fund.
(b) (I) The department may use moneys in the redevelopment fund for
administration, investigation, abatement action, and preparing and implementing
corrective action plans for petroleum releases not covered by the petroleum storage tank
fund if, in the opinion of the director of the division of oil and public safety, such actions
would enhance environmental protection and beneficial use of the property affected by
the releases.
(II) Subject to the availability of money in the redevelopment fund, the maximum
amount payable from the redevelopment fund for any single corrective action plan must
not exceed fifty percent of the eligible cleanup costs or five hundred thousand dollars,
whichever is less.
(c) (I) During the fiscal year beginning July 1, 2013, the treasurer shall transfer
five million dollars from the redevelopment fund to the state highway fund. The
transferred moneys:
(A) Shall be expended solely for costs related to construction of a fire suppression
system at the Eisenhower-Johnson tunnels; and
(B) Shall not be expended for administrative purposes.
(II) This paragraph (c) is repealed, effective July 1, 2014.
(d) The division of oil and public safety shall promulgate rules to implement this
subsection (9).
8-20.5-104. Rules - petroleum storage tank committee. (1) The governor shall
appoint a petroleum storage tank committee, which shall consist of seven members who
have technical expertise and knowledge in fields related to corrective actions taken to
mitigate underground and aboveground storage tank releases. The director of the division
of oil and public safety or the director's designee, the executive director of the department
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or the designee of the executive director, and an owner or operator shall be permanent
members of the committee. The remaining four members of the committee shall be
chosen from among the following groups, with no more than one member representing
each group: Fire protection districts; elected local governmental officials; companies that
refine and retail motor fuels in Colorado; companies that wholesale motor fuels in
Colorado; owners and operators of independent retail outlets; companies that conduct
corrective actions or install and repair underground and aboveground storage tanks; and
private citizens or interest groups. The department shall provide staff to support the
activities of the committee.
(2) Members of the committee shall serve three-year terms. All vacancies shall be
filled by the governor to serve the remainder of the unexpired term.
(3) Members of the committee shall receive no additional salary or per diem
reimbursement for their services as members of the committee, but shall be allowed travel
and parking costs and maintenance expenses while on official committee business
conducted more than one hundred miles from their respective residences.
(4) The committee shall be required to meet no more than twice in any month. The
committee shall recommend all regulatory actions proposed by the committee to the
director of the division of oil and public safety for adoption or ratification. The committee
shall conduct the following activities in accordance with section 24-4-105, C.R.S., as its
routine business:
(a) Establish procedures, practices, and policies governing the committee's
activities;
(b) Review standards and regulations governing underground and aboveground
storage tanks;
(c) Establish procedures, practices, and policies governing the form and
procedures for applications to the petroleum storage tank fund for reimbursement
compensation;
(d) (I) Establish procedures, practices, and policies governing any and all aspects
of processing, adjusting, defending, or paying claims against the fund. To encourage tank
owners and operators to report and remediate contamination and achieve compliance with
rules promulgated by the director of the division of oil and public safety, the committee
may approve claims involving tanks not operated in substantial compliance, but may also
determine the amount, if any, by which such claims may be reduced for noncompliance.
Before imposing any reduction for noncompliance the committee shall determine whether
the rules issued by the director of the division of oil and public safety are both
substantially and procedurally no more stringent than United States environmental
protection agency regulations under 42 U.S.C. sec. 6991 and whether the areas of
noncompliance were brought into compliance prior to application to the fund, where
possible. The committee shall use the following guidelines when imposing a reduction for
noncompliance:
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(A) Up to a ten percent reduction for failure to register a tank;
(B) Up to a twenty-five percent reduction for improper release detection;
(C) Up to a ten percent reduction for improper release reporting;
(D) Up to a twenty percent reduction for improper out-of-service and closure.
(II) Nothing in this article shall be construed to require the committee to approve a
claim involving substantial noncompliance. The committee shall establish specific criteria
to define when denial for substantial noncompliance may be imposed.
(e) Establish priorities governing the types of corrective actions which shall be
reimbursed from the fund;
(f) Review corrective action plans submitted pursuant to section 8-20.5-209, for
which no agreement has been reached through informal conferences between the
department and the owner or operator, and make a recommendation to the department,
upon request from the department or the owner or the operator, as to the corrective action
that is acceptable;
(g) Issue public notices and hold public hearings to obtain comment on the
activities described in this subsection (4);
(h) (I) (A) Pay interest to all persons who file a properly and fully completed
claim for reimbursement and are not reimbursed in a timely manner. For purposes of this
paragraph (h), interest shall accrue on the amount approved for payment by the committee
at the rate determined pursuant to section 39-21-110.5, C.R.S., for each day a properly
and fully completed application is not processed in a timely manner.
(B) Notwithstanding this paragraph (h), if a claimant cannot be reimbursed in a
timely manner because insufficient moneys in the petroleum storage tank fund prevent the
issuance of a reimbursement check within thirty days after approval of the disbursement,
interest shall not begin to accrue on the claim until thirty-one days after sufficient moneys
are available in said fund.
(II) For purposes of this paragraph (h), "timely manner" means:
(A) That an application filed with the petroleum storage tank fund on or after
January 1, 1996, shall be submitted for review by the committee within ninety working
days of receipt;
(B) That an application filed with the petroleum storage tank fund on or after July
1, 1995, but before January 1, 1996, shall be submitted for review by the committee
within one hundred twenty working days of receipt;
(C) That an application filed with the petroleum storage tank fund before July 1,
1995, shall be submitted for review by the committee no later than December 31, 1995;
(D) That reimbursement checks shall be issued within thirty days after
disbursement is approved by the committee.
(5) The committee may, in order to perform any or all of its responsibilities and
functions under subsection (4) of this section, contract for the use of outside experts,
consultants, or services.
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(6) Reductions determined by the committee because of noncompliance shall be
cumulative and shall apply to all eligible costs approved by the committee in the initial
and all supplemental claims for the occurrence as defined in section 8-20.5-206 (2);
except that in no instance shall cumulative reductions for noncompliance apply to claims
submitted in accordance with section 8-20.5-206 (3) or 8-20.5-303 (3).
(7) The reductions described in subsections (4) (d) and (6) of this section pertain
to this section only and shall not be construed to have any impact on cost-recovery actions
taken in accordance with section 8-20.5-209 or any civil or criminal penalties imposed as
part of an enforcement proceeding.
(8) At its first meeting of each fiscal year, on or about July 1, the committee shall
establish and set aside for reimbursements to those individuals who are eligible to make
application to the fund in accordance with section 8-20.5-206 (3) or 8-20.5-303 (3), an
amount equal to twenty percent of the total budget of the department from the petroleum
storage tank fund, which amount shall be used for the purpose of conducting remediation
activities in accordance with sections 8-20.5-206 (3), 8-20.5-209, and 8-20.5-303 (3) and
shall protect the integrity of the fund as a financial assurance mechanism for tank owners
and operators. The committee shall reexamine on a quarterly basis the unencumbered
balance of this allocation and may set aside lesser or additional amounts for
reimbursements to such applicants based on the relative number of requested
reimbursements from the owners and operators of active sites, with preference given to
the remediation of recently contaminated locations and to active tank sites based on their
higher potential for environmental impact.
(9) The petroleum storage tank committee shall exercise its powers and perform
its duties and functions specified by this section under the department of labor and
employment and the executive director thereof as if the same were transferred to the
department by a type 1 transfer, as such transfer is defined in section 24-1-105, C.R.S.
8-20.5-105. Confidentiality. (1) Any records, reports, and information obtained
from any person under the provisions of this article shall be available to the public; except
that any records granted confidentiality by the director of the division of oil and public
safety or a designee, or granted confidentiality under existing Colorado statutes or rules,
shall remain confidential.
(2) Any person making such confidential records available to any person or
organization without authorization from the affected operator or owner commits a class 3
misdemeanor and shall be punished as provided in section 18-1.3-501, C.R.S.
(3) Confidential records may be disclosed to officers, employees, or authorized
representatives of the state or of the United States who have been charged with
administering this article or subtitle I of the federal "Resource Conservation and Recovery
Act of 1976", as amended. Such disclosure shall not constitute a waiver of confidentiality.
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8-20.5-106. Injunctions. In addition to the remedies provided in this article, the
director of the division of oil and public safety is authorized to apply to the district court,
in the judicial district where the violation has occurred, for a temporary or permanent
injunction restraining any person from violating any provision of this article, regardless of
whether there is an adequate remedy at law.
8-20.5-107. Enforcement orders - civil penalties. (1) A notice of violation may
be issued by the director of the division of oil and public safety to any person who is
believed to have violated any provision of this article, any rule promulgated pursuant
thereto, or any warrant issued pursuant to section 8-20.5-208. The notice of violation shall
be served personally or by certified mail, return receipt requested, upon the alleged
violator.
(2) The notice of violation shall set forth the facts which allegedly constitute the
violation and the provisions which have allegedly been violated of either this article or
any regulation promulgated pursuant thereto. The notice of violation may require the
alleged violator to take any actions necessary to correct the alleged violation.
(3) Within ten working days after service of the notice of violation, the alleged
violator may file a written request with the director of the division of oil and public safety
for an informal conference regarding the notice of violation. If the alleged violator fails to
timely request an informal conference, all provisions of the notice of violation shall
become final and not subject to further administrative review. The director of the division
of oil and public safety may then seek judicial enforcement of the notice of violation.
(4) Upon receipt of the written request, the director of the division of oil and
public safety shall provide the alleged violator with a written notice of the date, time, and
place of the informal conference. The director of the division of oil and public safety or a
designee shall preside at the informal conference, during which the alleged violator and
the entity that issued the notice of violation may present information and arguments
regarding the allegations and requirements of the notice of violation.
(5) Within twenty working days after the informal conference, the director of the
division of oil and public safety shall uphold, modify, or strike the allegations of the
notice of violation and may issue an enforcement order. The decision shall be served upon
the alleged violator personally or by certified mail, return receipt requested. Such notice
of violation or enforcement order may be appealed within twenty working days to the
executive director of the department. The executive director may either conduct the
hearing personally or appoint an administrative law judge from the office of
administrative courts in the department of personnel to conduct the hearing. The
executive director may review such decision in accordance with the provisions of section
24-4-105, C.R.S., and final agency action shall be determined in accordance with the
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provisions of said section. Such final agency action shall be subject to judicial review in
accordance with section 24-4-106, C.R.S.
(6) The enforcement order may require the alleged violator to pay a civil penalty
not to exceed five thousand dollars per tank for each day of violation.
(7) The director of the division of oil and public safety may file suit in the district
court for the judicial district in which violations have occurred to obtain judicial
enforcement of the provisions of any enforcement order. The petroleum storage tank fund
may be subrogated to the rights of an owner or operator with respect to a claimed amount
at the time a claim is filed with the fund.
8-20.5-108. Petroleum storage tank administration - transfer to department
of labor and employment - legislative declaration. (1) (a) The general assembly hereby
finds, determines, and declares that there is a significant backlog in the processing of
claims being made against the petroleum storage tank fund. Claims for reimbursement for
cleaning up petroleum contamination are not acted upon in a timely manner, which places
the storage tank owner in financial jeopardy. Lenders are reluctant to write loans on
contaminated property, causing the next phase of remediation to be delayed and allowing
contamination to spread, threatening the environment and unnecessarily escalating future
cleanup expenses.
(b) The general assembly further finds, determines, and declares that it is in the
best interest of this state to transfer petroleum storage tank administrative functions
performed by the department of public health and environment to the department of labor
and employment, and thereby consolidate the administration and regulation of petroleum
storage tanks in this state under one department, which will minimize the cost of such
functions and centralize management.
(2) (a) The administrative functions of the petroleum storage tank fund, including
claims processing, corrective action plan review and approval, and any other
responsibilities for petroleum storage tank programs performed by the department of
public health and environment prior to July 1, 1995, are transferred to the department of
labor and employment. All employees of the department of public health and
environment, excluding any contract labor, who perform the functions transferred
pursuant to this subsection (2) and whose employment in the department of labor and
employment is deemed necessary by the executive director of the said department are
transferred to the department of labor and employment and shall become employees
thereof.
(b) Such employees shall retain all rights to the state personnel system and
retirement benefits under the laws of this state, and their services shall be deemed to have
been continuous. All transfers and any abolishment of positions in the state personnel
system shall be made and processed in accordance with state personnel system laws and
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rules.
(c) On July 1, 1995, all items of property, real and personal, including office
furniture and fixtures, books, documents, and records of the department of public health
and environment pertaining to the duties and functions transferred to the department of
labor and employment pursuant to this subsection (2) are transferred to the department of
labor and employment and shall become the property of such department.
(3) Repealed.
PART 2
UNDERGROUND STORAGE TANKS
8-20.5-201. Legislative declaration. The general assembly hereby finds and
declares that the leakage of regulated substances from underground storage tanks
constitutes a potential threat to the waters and the environment of the state of Colorado
and presents a potential menace to the public health, safety, and welfare of the people of
the state of Colorado and that, to that end, it is the purpose of this part 2 to establish a
program for the protection of the environment and of the public health and safety by
preventing and mitigating the contamination of the subsurface soil, groundwater, and
surface water which may result from leaking underground storage tanks.
8-20.5-202. Duties of director of division of oil and public safety. (1) The
director of the division of oil and public safety shall promulgate and enforce rules that are
no more stringent than the requirements contained in 42 U.S.C. sec. 6991 et seq., and the
regulations promulgated thereunder, except as allowed by federal law, including the
federal "Energy Policy Act of 2005", Pub.L. 109-58, as amended, for:
(a) Notification requirements for owners and operators of underground storage
tanks;
(b) Design, performance, construction, and installation standards for new
underground storage tanks;
(c) Design, performance, construction, and installation standards for the upgrading
of existing underground storage tanks;
(d) General operating requirements;
(e) Release detection;
(f) Release reporting, investigation, and confirmation; and
(g) (Deleted by amendment, L. 2007, p. 980, § 2, effective July 1, 2007.)
(h) Financial responsibility for underground storage tank systems containing
regulated substances.
(1.5) The director of the division of oil and public safety shall promulgate and
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enforce rules for out-of-service underground storage tank systems and closure of such
tanks.
(1.7) Within one hundred twenty days after January 1, 2008, the director of the
division of oil and public safety shall promulgate, and the division shall enforce, rules
concerning the placement of underground storage tanks that contain renewable fuels.
Such rules shall be promulgated with the purpose of developing a uniform statewide
standard of issuing permits for underground storage tanks to promote the use of
renewable fuels so that the process of obtaining a permit for an underground storage tank
that contains renewable fuels may be more efficient and affordable.
(2) The director of the division of oil and public safety shall ensure that:
(a) All releases from underground storage tank systems are promptly assessed and
that further releases are stopped;
(b) Actions are taken to identify, contain, and mitigate any immediate fire and
safety hazards that are posed by a release;
(c) All releases from underground storage tank systems are investigated to
determine if there are impacts of reportable quantities on subsurface soil, groundwater,
and any nearby surface water;
(d) All releases above reportable quantities are reported to the director of the
division of oil and public safety.
(3) The director of the division of oil and public safety shall, if necessary,
negotiate and enter into memoranda of agreement with and apply for and receive grants
from the United States environmental protection agency pursuant to the provisions of this
article.
(4) The director of the division of oil and public safety shall establish criteria
pursuant to subsection (1) of this section for delegation of authority to local agencies.
(5) Repealed.
8-20.5-203. Performance of duties by owner or operator. Duties imposed by
this part 2 on the owner or the operator may be performed by either the owner or the
operator. If neither the owner nor the operator performs the duties imposed by this part 2,
both shall be considered in violation of this part 2.
8-20.5-204.
Installation and upgrading of underground storage
tanks. (1) Plans for any installation of a new underground storage tank and plans for the
complete upgrading of an existing underground storage tank shall be submitted by the
owner or operator of the proposed or existing underground storage tank to the director of
the division of oil and public safety for approval prior to such installation or upgrading.
(2) Plans for the installation of a new underground storage tank or for the
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complete upgrading of an existing underground storage tank shall be in compliance with
the rules promulgated pursuant to section 8-20.5-202 (1). The director of the division of
oil and public safety or a designee shall approve or reject proposed plans and amendments
thereto within twenty working days after submittal of the plan. If no action is taken by the
director of the division of oil and public safety or a designee within twenty working days
after submittal, the plans shall be deemed approved.
(3) In an emergency situation the director of the division of oil and public safety
shall respond to plans within twenty-four hours.
(4) The director of the division of oil and public safety or a designee shall make
an on-site inspection of every new installation and every upgrading of an existing
underground storage tank prior to the operational start-up of such tank to ensure that all of
the standards established in this part 2 have been met. The director of the division of oil
and public safety or a designee shall complete the on-site inspection within ten calendar
days prior to the anticipated operational start-up date. For the purposes of this subsection
(4), a designee may be an underground storage tank inspector when licensed as such by
the director of the division of oil and public safety.
(5) All installations and inspections of underground storage tanks shall be
performed in accordance with the rules promulgated by the director of the division of oil
and public safety pursuant to section 8-20.5-202 (1).
(6) The director of the division of oil and public safety shall establish a fee to be
paid by each person submitting plans pursuant to subsection (1) of this section for on-site
inspection. The fees paid pursuant to this subsection (6) shall be:
(a) Used for the administration of this section; and
(b) No more than necessary to offset the direct costs of the inspections conducted
pursuant to subsections (4) and (5) of this section, but in no event more than one hundred
fifty dollars.
8-20.5-205. More stringent requirements prohibited. (1) No municipality, city,
home rule city, city and county, county, or other political subdivision of the state shall
adopt or enforce any requirement more stringent than the provisions of this part 2. This
section does not apply to requirements established pursuant to the uniform fire code or the
national fire protection association codes, nor does it apply to requirements established
pursuant to local zoning regulations.
(2) The limitation in subsection (1) of this section shall not apply to any
municipality, city, home rule city, city and county, county, or other political subdivision
of the state which has received an exemption from the committee created in section 820.5-104. The committee may grant a site-specific exemption when the applicant
demonstrates that such an exemption would be cost beneficial and serve the health, safety,
or economic interest of its citizens based on consideration of local hydrologic, geologic,
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or other conditions, including location of population concentrations or commercial areas.
8-20.5-206. Financial responsibility for petroleum underground storage
tanks. (1) (a) Moneys in the petroleum storage tank fund, created pursuant to section 820.5-103, and referred to in this section as the "fund", may be used by certain owners and
operators of petroleum storage tanks to demonstrate their compliance with the financial
responsibility requirements in federal regulations. Owners and operators not eligible for
access to the fund shall be solely responsible for securing independent financial
assistance, but may use any federally approved financial assurance mechanism identified
in 40 CFR 280.94 through 280.103 to help fund the cost of complying with such
requirements.
(b) (I) After payment is made from the fund for remediation expenses, the owner
or operator on whose behalf the payment was made shall pay to the fund the remediation
amount or ten thousand dollars, whichever is less.
(II) The payment required pursuant to subparagraph (I) of this paragraph (b) shall
be waived if:
(A) The owner or operator discovers the contamination while upgrading tanks to
meet the December 22, 1998, deadline for corrosion protection, spill and overfill
prevention, or monthly monitoring;
(B) The upgrade is completed no later than December 22, 1997; and
(C) The annual throughput of petroleum products at the site does not exceed six
hundred thousand gallons during the year preceding the discovery of contamination.
(c) After payment is made from the fund for personal injury or property damage
settlement expenses, or a combination of both, the owner or operator on whose behalf the
payment was made shall pay to the fund the aggregate settlement payment amount or
twenty-five thousand dollars, whichever is less.
(d) Moneys in the fund shall not be used for any remediation activity at a location
that is within a site identified by the national priorities list, or where a response action by
this state has begun pursuant to the federal "Comprehensive Environmental Response,
Compensation, and Liability Act of 1980".
(e) If an owner or operator cannot meet the financial requirements of paragraphs
(b) and (c) of this subsection (1), another approved financial assurance mechanism must
be identified for such owner or operator to remain in compliance with this section and to
be allowed to continue operation of an underground petroleum storage tank.
(2) The maximum amount of liability of the fund under this section shall be three
million dollars aggregate during a state fiscal year for multiple occurrences involving
tanks that are the responsibility of an individual owner or operator, but in no event shall
the liability of the fund exceed two million dollars per occurrence. For purposes of this
section, an "occurrence" means the period of time from identification through remediation
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of a leak, spill, or release of a petroleum product from an underground storage tank. In the
event the cost of remediation or third-party claims exceeds the amount available to pay
such costs, such costs and claims shall be paid on a pro rata basis as determined by the
committee created in section 8-20.5-104. Any balance owed shall be paid as moneys
become available in the fund. Any excess costs that are not paid by the fund or by the
federal leaking underground storage tank trust fund shall be paid by and are the sole
responsibility of the responsible owner or operator.
(3) Moneys in the fund shall be available to pay required cleanup costs and thirdparty liability payments with no deductibles for the following applicants who are deemed
to bear no responsibility for the release:
(a) A current or former property owner who has never owned, operated, leased, or
managed petroleum underground storage tanks at the property where the release occurred,
provided such property was acquired on or before June 3, 1992, and in the case of a
preexisting release, the property owner had no reason to know that a release had occurred
prior to acquiring the property;
(b) When an orphan or abandoned petroleum underground storage tank is
involved and the applicant is a current or former owner, operator, or property owner who
has never operated the tank or tanks and had no reason to know that a release had
occurred prior to acquiring the property;
(c) A current owner or operator of petroleum underground storage tanks if at the
time the owner or operator acquired such tanks such owner or operator had no reason to
know that a release had already occurred, if such owner or operator has operated the tanks
in accordance with sections 8-20.5-202 and 8-20.5-302, and if the release was detected on
or before December 22, 1998;
(d) Any mortgagee or holder of an evidence of debt secured by a deed of trust
who, through foreclosure of the mortgage or deed of trust or through receipt of a deed to
the property in lieu of foreclosure, acquires property on which an underground storage
tank is located, and such mortgage or deed of trust is dated on or before January 1, 1993;
(e) (I) (A) Any mortgagee or holder of an evidence of debt secured by a deed of
trust who, through foreclosure of the mortgage or deed of trust or through receipt of a
deed to the property in lieu of foreclosure, acquires property on which an underground
storage tank is located, and such mortgage or deed of trust is dated after January 1, 1993,
and the mortgagee or holder of an evidence of debt secured by a deed of trust has
obtained a certificate of eligibility regarding the property in accordance with the rules of
the director of the division of oil and public safety; or
(B) Any mortgagee or holder of an evidence of debt as described in subsubparagraph (A) of this subparagraph (I), who sells the property on which an
underground storage tank is located in lieu of remediating such property and transfers the
certificate of eligibility to the purchaser. Such purchaser may receive fund moneys
pursuant to this subsection (3).
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(II) The director of the division of oil and public safety shall promulgate rules
necessary to implement this program.
(4) In lieu of seeking reimbursement directly from the fund, an owner, operator, or
current property owner who bears no responsibility for the release, under the provisions
of subsection (3) of this section, may request that the department perform the cleanup
using funds from the petroleum storage tank fund without further proving eligibility for
such use. In addition to any purpose provided for in section 8-20.5-103, moneys in the
petroleum storage tank fund may be appropriated by the general assembly to the
department for the purpose of providing for the cleanup authorized in this section.
(5) Whenever appropriate, to pay costs that exceed the maximum allowed to be
paid from the fund under this section, the state shall seek funding from the federal leaking
underground storage tank trust fund.
(6) Underground storage tanks containing petroleum or other regulated substances
that are owned or operated by, or are on property owned or leased by, an Indian tribe or
the federal government, or an agency or subcontractor performing services on behalf of
the federal government shall be subject to federal financial responsibility regulations. Any
financial responsibility requirements for damages caused by such tanks are not the
responsibility of the fund unless the tanks are owned or operated by a person, other than
the federal government or such agency or subcontractor, and located on property that is
leased from or otherwise occupied pursuant to a permit or other agreement with the
United States or any agency thereof other than the department of defense or the
department of energy.
(7) Nothing in this article shall create any liability for the state of Colorado that
exceeds the amount available in the fund.
(8) Subject to subsection (6) of this section, owners and operators of underground
storage tanks that are on fee lands may use the fund to demonstrate compliance with the
financial responsibility requirements in federal regulations if the owners and operators
have registered such tanks pursuant to section 8-20.5-102.
8-20.5-207. Financial responsibility for regulated substances other than
petroleum. Owners and operators of underground storage tanks containing regulated
substances other than petroleum may demonstrate financial responsibility for taking
corrective action and for compensating third parties for bodily injury and property
damages by using any one or more of the mechanisms allowable under 40 CFR sections
280.95, 280.96, 280.97, 280.98, 280.99, 280.102, and 280.103. Owners and operators of
underground storage tanks containing regulated substances other than petroleum shall not
be eligible to participate in the petroleum storage tank fund, but shall be subject to federal
financial responsibility regulations.
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8-20.5-208. Reporting of releases - investigation. (1) If a release is detected or
suspected, the owner or operator shall immediately take all actions necessary to mitigate
or stop the release and shall mitigate fire and safety hazards.
(2) Upon detection of any release of reportable quantities of a regulated substance
from an underground storage tank, the owner or operator shall report such release to the
director of the division of oil and public safety within twenty-four hours of its detection.
However, the local fire authority shall be notified immediately if such release exceeds
reportable quantities. If the director of the division of oil and public safety determines that
the release of such reportable quantity will affect subsurface soils, groundwater, or
surface water, the department may require the owner or operator to take corrective action
in accordance with section 8-20.5-209.
(3) If the director of the division of oil and public safety or a designee finds that a
release has occurred, and the owner or the operator cannot be identified, or is unwilling to
mitigate or stop the release or mitigate fire and safety hazards, the director of the division
of oil and public safety or a designee may initiate free product removal and whatever
other actions are necessary to mitigate fire and safety hazards.
(4) For the purpose of enforcing this section, if a release poses an imminent and
substantial threat to human health and the environment, the director of the division of oil
and public safety or a designee is authorized to take such action as is necessary under the
circumstances, including but not limited to:
(a) Entering any property, premises, or place where an underground storage tank
is located;
(b) Monitoring or testing or requiring the owner or the operator to monitor or test
any underground storage tank or any surrounding soils, groundwater, or surface water. A
duplicate sample taken for testing shall be provided to any person, at such person's
request, who the director of the division of oil and public safety or a designee reasonably
believes may be responsible for the release. A duplicate copy of the analytical report
pertaining to the samples taken pursuant to this paragraph (b) shall be provided as soon as
practicable to any person who the director of the division of oil and public safety or a
designee reasonably believes may be responsible for the release. When such tests are
performed, the director of the division of oil and public safety shall notify, when possible,
any person reasonably believed to be an owner or operator.
(c) Entering any site or premises in which records relevant to the operation of an
underground storage tank are maintained and to inspect and copy such records.
(5) If such entry or inspection is denied or not consented to, the director of the
division of oil and public safety or a designee shall obtain, from the district or county
court for the judicial district or county in which such property, premises, or place is
located, a warrant to enter and inspect any such property, premises, or place prior to entry
and inspection. The district and county courts of the state of Colorado are authorized to
issue such warrants upon proper showing of the need for such entry and inspection.
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(6) If requested by the director of the division of oil and public safety or a
designee, the owner or the operator of an underground storage tank shall provide any
information in such owner's or operator's possession regarding the tank.
8-20.5-209. Regulated substances releases - corrective actions. (1) If a release
has occurred at a site where the owner or the operator cannot be identified, after the
director of the division of oil and public safety or a designee has mitigated fire and safety
hazards in accordance with section 8-20.5-208 and determined that a release exceeds
reportable quantities, the director of the division of oil and public safety may initiate
corrective action to mitigate any threat to subsurface soil, groundwater, or surface water
and develop a plan for cleanup in accordance with subsection (3) of this section and shall
recover costs pursuant to section 8-20.5-103.
(2) If the release has occurred at a site where the owner or the operator can be
identified, and after fire and safety hazards have been mitigated in accordance with
section 8-20.5-208 and the director of the division of oil and public safety has determined
that the release exceeds reportable quantities, then the owner or the operator shall provide
the director of the division of oil and public safety with a corrective action plan to clean
up subsurface soil, groundwater, and surface water as a result of the release. In addition to
the corrective action plan, the owner or operator shall prepare a summary of the costs
associated with the preferred corrective action, taking into account economic and
technological feasibility, in accordance with the rules promulgated pursuant to section 820.5-104 (4) (d) and shall submit the summary to the committee created in said section.
The director of the division of oil and public safety shall review and approve or
disapprove the plan and, if the plan is disapproved, shall provide the owner or the
operator with a statement specifying the deficiencies in the plan. The owner or the
operator shall submit a revised plan within twenty working days after receipt of the
statement, and the owner or the operator shall be given an opportunity to take necessary
and appropriate actions to clean up subsurface soils, groundwater, and surface water. If
the owner or the operator is unable or unwilling to take such necessary and appropriate
actions, the director of the division of oil and public safety may conduct corrective action
to the extent appropriate to protect subsurface soils, groundwater, or surface water as a
result of that release. Such action shall be taken after consideration of the risks posed to
the public health and shall be determined in light of current economic and technological
feasibility.
(3) After the director of the division of oil and public safety mitigates the threat to
subsurface soils, groundwater, and surface water as specified in subsections (1) and (2) of
this section, and the owner or the operator of the tank from which petroleum has been
released is identified, the owner or the operator shall pay the required costs pursuant to
the financial responsibility requirements set forth in sections 8-20.5-206, 8-20.5-207, and
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8-20.5-303, incurred in the investigation of the release and mitigation of threats to
subsurface soils, groundwater, and surface water. The director of the division of oil and
public safety may file suit in the district court for the judicial district in which the release
occurred to recover such costs. The moneys obtained as a result of any suit brought
pursuant to this section shall be credited to the petroleum storage tank fund created in
section 8-20.5-103.
(4) The director of the division of oil and public safety may order the owner or the
operator of an underground storage tank from which a regulated substance has been
released to implement a corrective action plan approved under subsection (2) of this
section. Such order shall be served personally or by certified mail, return receipt
requested, upon the owner or the operator.
(5) If the director of the division of oil and public safety disapproves or fails to
approve the plan within thirty days after the plan's submission, the director shall
immediately provide a statement of findings of fact outlining the reasons for such
disapproval or failure to approve, including the reasons the proposed plan fails to meet
the criteria outlined in this section. The statement shall be provided by formal notice or by
certified mail to the owner or the operator within ten days after the director's decision.
(6) The director of the division of oil and public safety may waive the requirement
for such a plan if the director determines that reasonable steps have been taken to prevent
further releases and that any previously released regulated substance has been cleaned up
to the extent appropriate to protect subsurface soils, groundwater, or surface water as a
result of that release at that specific location. Such action shall be taken after
consideration of the risks posed to the public health and shall be determined in light of
current economic and technological feasibility.
(7) Within ten days after notification of disapproval of the plan, the owner or the
operator may file a written request with the director of the division of oil and public
safety for an informal conference regarding the disapproval. Upon receipt of such a
request, the director shall provide the owner or the operator with a written notice of the
date, time, and place of the informal conference. The executive director of the department
or a designee shall preside at the informal conference, during which the owner or the
operator and the director or the director's designee may present information and
arguments regarding the issues raised in the statement of findings of fact.
(8) Within twenty days after the conference, the owner or operator may resubmit a
modified plan which addresses the deficiencies identified by the department in the
original plan. The department shall review the modifications to the plan and, within
twenty days, approve or disapprove the resubmitted plan. If, after the conference, the
owner, the operator, or the department determines that the issues identified in the
statement of findings of fact cannot be reasonably resolved, the owner, the operator, or
the department may request that the committee, created in section 8-20.5-104, schedule
and hold a hearing within thirty days to resolve the issues identified in the statement of
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findings of fact.
(9) At any time after the receipt of the statement of findings of fact, the owner, the
operator, or the department may request, in writing, a formal hearing before the
committee created in section 8-20.5-104. Upon such request, the committee shall meet
and review the initial plan and statement of findings of fact.
(10) The committee shall recommend such plan if any current release has been
mitigated and if any regulated substance which has been released has been or will be
cleaned up to the extent appropriate to protect subsurface soils, groundwater, or surface
water as a result of the release at that specific location. The department shall give serious
consideration to the recommendation of the committee. Such action shall be taken after
consideration of the risks posed to the public and shall be determined in light of current
economic and technological feasibility. If the committee finds that a current release has
not been mitigated or that any regulated substance which has been released will not be
cleaned up to the extent appropriate, the committee shall issue a statement of findings of
fact and recommendations to the department for revisions to the plan. Such revisions, if
approved by the department, shall be incorporated into the plan by the department, and
the revised plan shall then be approved as provided in subsection (2) of this section.
(11) Within thirty days following mitigation and cleanup, the department shall
notify the owner or the operator, in writing, that the owner or the operator has complied
with the requirements for mitigation and cleanup as outlined in this section.
(12) For the purpose of implementing the provisions of this section, the
department or its designee is authorized for justifiable cause:
(a) To enter the property, premises, or place where a release or suspected release
from an underground storage tank is located;
(b) To monitor or test or require the owner or the operator to monitor or test an
underground storage tank or any surrounding soils, groundwater, or surface water where a
suspected release from an underground storage tank has occurred. A duplicate sample
taken for testing shall be provided to any owner or operator who the department
reasonably believes may be responsible for the violation upon request of such person. A
duplicate copy of the analytical report pertaining to the samples taken pursuant to this
paragraph (b) shall be provided as soon as practicable to any person the department or its
designee reasonably believes may be responsible for the violation. When such tests are
performed, the department shall notify, when possible, any person reasonably believed to
be an owner or operator.
(13) If such entry or inspection is denied, the department shall obtain, from the
district or county court for the judicial district or county in which such property, premises,
or place is located, a warrant to enter and inspect any such property, premises, or place
prior to entry and inspection. The district and county courts of the state of Colorado are
authorized to issue such warrants upon proper showing of the need for such entry and
inspection.
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(14) If requested by the department or its designee, the owner or operator of an
underground storage tank shall provide any information in such owner's or operator's
possession regarding the tank.
(15) The department may consider water quality standards adopted by the water
quality control commission as guidelines for cleanup but must assure that cleanup
requirements are appropriate, in light of economic and technical feasibility and after
consideration of the risks to public health, to protect subsurface soils, groundwater, or
surface water as a result of a release at a specific location.
(16) The department shall, if necessary, negotiate and enter into memoranda of
agreement with and apply for and receive grants from the United States environmental
protection agency pursuant to the provisions of this article.
PART 3
ABOVEGROUND STORAGE TANKS
8-20.5-301. Legislative declaration. The general assembly hereby finds and
declares that the rising expense of operating and maintaining aboveground storage tanks,
including but not limited to the cost of liability insurance, has resulted in the
discontinuance of business by several small gasoline service station operators and
imposes an increasing hardship on those service stations still in operation. The general
assembly further finds that the viability of aboveground storage tanks is being recognized
and that rules and regulations for aboveground storage tanks have been promulgated and
endorsed by the western fire chiefs association's uniform fire code committee and the
national fire protection association's automotive and service station code committee. The
general assembly further finds that aboveground storage tanks for fuel products are
feasible and economical and should be permitted under certain narrowly drawn
circumstances.
8-20.5-302. Duties of director of division of oil and public safety. (1) The
director of the division of oil and public safety shall make, promulgate, and enforce rules
for aboveground storage tanks installed before July 1, 1993, which rules shall be no more
stringent than the rules in place on the date of installation, except as mandated by federal
spill prevention, control, and countermeasures regulations promulgated by the United
States environmental protection agency.
(2) The director of the division of oil and public safety shall make, promulgate,
and enforce rules concerning the design, construction, installation, and operation of
aboveground storage tanks permitted to be used and installed on or after July 1, 1993,
which rules shall be no more stringent, either substantially or procedurally, than the
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requirements contained in the current edition of the national fire code published by the
national fire protection association, as revised by the association from time to time, and in
spill prevention control and countermeasures regulations promulgated by the United
States environmental protection agency.
(3) Within one hundred twenty days after January 1, 2008, the director of the
division of oil and public safety shall promulgate, and the division shall enforce, rules
concerning the placement of aboveground storage tanks that contain renewable fuels.
Such rules shall be promulgated with the purpose of developing a uniform statewide
standard of issuing permits for aboveground storage tanks to promote the use of
renewable fuels so that the process of obtaining a permit for an aboveground storage tank
that contains renewable fuels may be more efficient and affordable.
8-20.5-303.
Financial responsibility for aboveground storage
tanks. (1) (a) Moneys in the petroleum storage tank fund, created pursuant to section 820.5-103 and referred to in this section as the "fund", may be used by certain owners and
operators of aboveground storage tanks. Any owner or operator of an aboveground
storage tank with a capacity of at least six hundred sixty gallons and less than forty
thousand gallons shall be eligible to participate in the fund.
(b) After payment is made from the fund for remediation expenses, the owner or
operator on whose behalf the payment was made shall pay to the fund the remediation
amount or ten thousand dollars, whichever is less.
(c) After payment is made from the fund for personal injury or property damage
after a court judgment or a settlement agreed to by the attorney general's office, or a
combination of both, the owner or operator on whose behalf the payment was made shall
pay to the fund the aggregate settlement payment amount or twenty-five thousand dollars,
whichever is less.
(d) Moneys in the fund shall not be used for any remediation activity at a location
that is within a site identified by the national priorities list, or where a response action by
this state has begun pursuant to the federal "Comprehensive Environmental Response,
Compensation, and Liability Act of 1980".
(e) If an owner or operator cannot meet the financial requirements of this
subsection (1), another approved financial assurance mechanism shall be identified for
such owner or operator to remain in substantial compliance with this section and to be
allowed to continue operation of an aboveground storage tank.
(2) The maximum amount of liability of the fund under this section shall be three
million dollars aggregate during a fiscal year for multiple occurrences involving tanks
that are the responsibility of an individual owner or operator, but in no event shall the
liability of the fund exceed two million dollars per occurrence. For purposes of this
section, an "occurrence" means the period of time from identification through remediation
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of a leak, spill, or release of a petroleum product from an aboveground storage tank. In
the event the cost of remediation or third-party claims exceeds the amount available to
pay such costs, such costs and claims shall be paid on a pro rata basis as determined by
the committee created in section 8-20.5-104. Any balance owed shall be paid as moneys
become available in the fund. Any excess costs that are not paid by the fund shall be paid
by and are the sole responsibility of the responsible owner or operator.
(3) Moneys in the fund shall be available to pay required cleanup costs and thirdparty liability payments with no deductibles for the following applicants who are deemed
to bear no responsibility for the release:
(a) A current or former property owner who has never owned, operated, leased, or
managed aboveground storage tanks at the property where the release occurred, provided
such property was acquired on or before June 3, 1992, and in the case of a preexisting
release, the property owner had no reason to know that a release had occurred prior to
acquiring the property;
(b) When an orphan or abandoned aboveground storage tank is involved and the
applicant is a current or former owner, operator, or property owner who has never
operated the tank or tanks and had no reason to know that a release had occurred prior to
acquiring the property;
(c) A current owner or operator of aboveground storage tanks if, at the time the
owner or operator acquired such tanks, such owner or operator had no reason to know that
a release had already occurred, if such owner or operator has operated the tanks in
accordance with sections 8-20.5-202 and 8-20.5-302;
(d) Any mortgagee or holder of an evidence of debt secured by a deed of trust
who, through foreclosure of the mortgage or deed of trust or through receipt of a deed to
the property in lieu of foreclosure, acquires property on which an aboveground storage
tank is located, and such mortgage or deed of trust is dated on or before January 1, 1993;
or
(e) (I) Any mortgagee or holder of an evidence of debt secured by a deed of trust
who, through foreclosure of the mortgage or deed of trust or through receipt of a deed to
the property in lieu of foreclosure, acquires property on which an aboveground storage
tank is located, and such mortgage or deed of trust is dated after January 1, 1993, and the
mortgagee or holder of an evidence of debt secured by a deed of trust has obtained a
certificate of eligibility regarding the property in accordance with the rules of the director
of the division of oil and public safety. The director of the division of oil and public
safety shall promulgate rules necessary to implement this program.
(II) Any mortgagee or holder of an evidence of debt as described in subparagraph
(I) of this paragraph (e) who sells the property on which an aboveground storage tank is
located in lieu of remediating such property and transfers the certificate of eligibility to
the purchaser. Such purchaser may receive funds pursuant to this subsection (3).
(4) In lieu of seeking reimbursement directly from the fund, an owner, operator, or
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current property owner who bears no responsibility for the release as set forth in
subsection (3) of this section may request that the department perform the cleanup using
moneys from the petroleum storage tank fund without further proving eligibility for such
use. In addition to any purpose provided for in section 8-20.5-103, moneys in the
petroleum storage tank fund may be appropriated by the general assembly to the
department for the purpose of providing for the cleanup authorized in this section.
(5) An owner or operator of an aboveground storage tank or a person deemed to
bear no responsibility for the release pursuant to subsection (3) of this section shall be
eligible to participate in the fund if eligibility requirements established by the petroleum
storage tank committee, created pursuant to section 8-20.5-104, are met.
(6) Aboveground storage tanks containing petroleum or other regulated substances
that are owned or operated by, or are on property owned or leased by, an Indian tribe or
the federal government or an agency or subcontractor performing services on behalf of
the federal government shall be subject to federal financial responsibility regulations. Any
financial responsibility requirements for damages caused by such tanks are not the
responsibility of the fund unless such tanks are owned or operated by a person, other than
the federal government or such agency or subcontractor, and located on property that is
leased from or otherwise occupied pursuant to a permit or other agreement with the
United States or any agency thereof other than the department of defense or the
department of energy.
(7) Nothing in this article shall create any liability for the state of Colorado that
exceeds the amount available in the fund.
(8) Subject to subsection (6) of this section, owners and operators of aboveground
storage tanks that are on fee lands may use the fund to demonstrate compliance with the
financial responsibility requirements in federal regulations if the owners and operators
have registered such tanks pursuant to section 8-20.5-102.
8-20.5-304. Regulated substances releases - corrective actions. (1) If a release
has occurred at a site where the owner or operator cannot be identified, after the director
of the division of oil and public safety or a designee has mitigated fire and safety hazards
in accordance with section 8-20.5-208 and determined that a release exceeds reportable
quantities, the director of the division of oil and public safety may initiate corrective
action to mitigate any threat to subsurface soil, groundwater, or surface water and develop
a plan for cleanup in accordance with subsection (3) of this section and shall recover costs
pursuant to section 8-20.5-103.
(2) If a release has occurred at a site where the owner or operator can be
identified, and after fire and safety hazards have been mitigated in accordance with
section 8-20.5-208 and the director of the division of oil and public safety has determined
that the release exceeds reportable quantities, then the owner or operator shall provide the
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director of the division of oil and public safety with a corrective action plan to clean up
subsurface soil, groundwater, and surface water as a result of the release. In addition to
the corrective action plan, the owner or operator shall prepare a summary of the costs
associated with the preferred corrective action, taking into account economic and
technological feasibility, in accordance with the rules promulgated pursuant to section 820.5-104 (4) (d) and shall submit the summary to the committee created in said section.
The director of the division of oil and public safety shall review and approve or
disapprove the plan and, if the plan is disapproved, the director shall provide the owner or
operator with a statement specifying the deficiencies in the plan. Within twenty working
days after receiving such statements, the owner or operator shall submit a revised plan
and shall be given an opportunity to take necessary and appropriate actions to clean up
subsurface soils, groundwater, and surface water. If the owner or operator is unable or
unwilling to take such necessary and appropriate actions, the director of the division of oil
and public safety may conduct corrective action to the extent appropriate to protect
subsurface soils, groundwater, or surface water as a result of that release. Such action
shall be taken after consideration of the risks posed to the public health and shall be
determined in light of current economic and technological feasibility.
(3) After the director of the division of oil and public safety mitigates the threat to
subsurface soils, groundwater, and surface water as specified in subsections (1) and (2) of
this section, and the owner or operator of the tank from which petroleum has been
released is identified, the owner or operator shall pay the required costs of investigation
and mitigation pursuant to the financial responsibility requirements set forth in sections 820.5-206, 8-20.5-207, and 8-20.5-303. The director of the division of oil and public safety
may file suit in the district court for the judicial district in which the release occurred to
recover such costs. The moneys obtained as a result of any suit brought pursuant to this
section shall be credited to the petroleum storage tank fund created in section 8-20.5-103.
(4) The director of the division of oil and public safety may order the owner or
operator of an aboveground storage tank from which a regulated substance has been
released to implement a corrective action plan approved under subsection (2) of this
section. Such order shall be served personally or by certified mail, return receipt
requested, upon the owner or operator.
(5) (a) If the director of the division of oil and public safety disapproves or fails to
approve the plan within thirty days following its submission, the director shall
immediately provide a statement of findings of fact outlining the reasons for such
disapproval or failure to approve, including the reasons the proposed plan fails to meet
the criteria outlined in this section. The statement shall be provided by formal notice or by
certified mail to the owner or operator within ten days after the director's decision.
(b) The director of the division of oil and public safety may waive the requirement
for such a plan if the director determines that reasonable steps have been taken to prevent
further releases and that any previously released regulated substance has been cleaned up
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to the extent appropriate to protect subsurface soils, groundwater, or surface water as a
result of that release at that specific location. Such action shall be taken after
consideration of the risks posed to the public health and shall be determined in light of
current economic and technological feasibility.
(6) (a) Within ten days after notification of disapproval of the plan, the owner or
operator may file a written request with the director of the division of oil and public
safety for an informal conference regarding the disapproval. Upon receipt of such a
request, the director shall provide the owner or operator with a written notice of the date,
time, and place of the informal conference. The executive director of the department or a
designee shall preside at the informal conference, during which the owner or operator and
the director or the director's designee may present information and arguments regarding
the issues raised in the statement of findings of fact.
(b) Within twenty days after the conference, the owner or operator may resubmit a
modified plan which addresses the deficiencies identified by the department in the
original plan. The department shall review the modifications to the plan and, within
twenty days, approve or disapprove the resubmitted plan. If, after the conference, the
owner or operator or the department determines that the issues identified in the statement
of findings of fact cannot be reasonably resolved, the owner or operator or the department
may request that the committee, created in section 8-20.5-104, schedule and hold a
hearing within thirty days to resolve the issues identified in the statement of findings of
fact.
(7) (a) At any time after receiving the statement of findings of fact, the owner or
operator or the department may request, in writing, a formal hearing before the committee
created in section 8-20.5-104. Upon such request, the committee shall meet and review
the initial plan and statement of findings of fact.
(b) The committee shall recommend such plan if any current release has been
mitigated and if any regulated substance which has been released has been or will be
cleaned up to the extent appropriate to protect subsurface soils, groundwater, or surface
water as a result of the release at that specific location. The department shall give serious
consideration to the recommendation of the committee. Such action shall be taken after
consideration of the risks posed to the public and shall be determined in light of current
economic and technological feasibility. If the committee finds that a current release has
not been mitigated or that any regulated substance which has been released will not be
cleaned up to the extent appropriate, the committee shall issue a statement of findings of
fact and recommendations to the department for revisions to the plan. Such revisions, if
approved by the department, shall be incorporated into the plan by the department, and
the revised plan shall then be approved as provided in subsection (2) of this section.
(8) Within thirty days following mitigation and cleanup, the department shall
notify the owner or operator, in writing, that the owner or operator has complied with the
requirements for mitigation and cleanup as outlined in this section.
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(9) (a) For the purpose of implementing the provisions of this section, the
department or its designee is authorized for justifiable cause:
(I) To enter the property, premises, or place where a release or suspected release
from an aboveground storage tank is located;
(II) To monitor or test or require the owner or operator to monitor or test an
aboveground storage tank or any surrounding soils, groundwater, or surface water where
a suspected release from an aboveground storage tank has occurred. A duplicate sample
taken for testing shall be provided to any owner or operator who the department
reasonably believes may be responsible for the violation upon request of such person. A
duplicate copy of the analytical report pertaining to the samples taken pursuant to this
subparagraph (II) shall be provided as soon as practicable to any person the department or
its designee reasonably believes may be responsible for the violation. When such tests are
performed, the department shall notify, when possible, any person reasonably believed to
be an owner or operator.
(b) If such entry or inspection is denied, the department shall obtain, from the
district or county court for the judicial district or county in which such property, premises,
or place is located, a warrant to enter and inspect any such property, premises, or place
prior to entry and inspection. The district and county courts of the state of Colorado are
authorized to issue such warrants upon proper showing of the need for such entry and
inspection.
(c) If requested by the department or its designee, the owner or operator of an
aboveground storage tank shall provide any information in such owner's or operator's
possession regarding the tank.
(10) (a) The department may consider water quality standards adopted by the
water quality control commission as guidelines for cleanup but shall assure that cleanup
requirements are appropriate, in light of economic and technical feasibility and after
consideration of the risks to public health, to protect subsurface soils, groundwater, or
surface water as a result of a release at a specific location.
(b) The department shall, if necessary, negotiate and enter into memoranda of
agreement with and apply for and receive grants from the United States environmental
protection agency.
PART 4
UNDERGROUND STORAGE TANKS INSTALLERS
8-20.5-401 to 8-20.5-407. (Repealed)
LABOR II - WORKERS' COMPENSATION AND RELATED PROVISIONS
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Workers' Compensation
ARTICLE 40
General Provisions
PART 1
SHORT TITLE - LEGISLATIVE DECLARATION
8-40-101. Short title. Articles 40 to 47 of this title shall be known and may be
cited as the "Workers' Compensation Act of Colorado".
8-40-102. Legislative declaration. (1) It is the intent of the general assembly that
the "Workers' Compensation Act of Colorado" be interpreted so as to assure the quick and
efficient delivery of disability and medical benefits to injured workers at a reasonable cost
to employers, without the necessity of any litigation, recognizing that the workers'
compensation system in Colorado is based on a mutual renunciation of common law
rights and defenses by employers and employees alike.
(2) The general assembly hereby finds that the determination of whether an
individual is an employee for purposes of the "Workers' Compensation Act of Colorado"
is subject to a great deal of speculation and litigation. It is the intent of the general
assembly to provide an easily ascertainable standard for determining whether an
individual is an employee. In order to further this objective, the test for determining
whether an individual is an employee for the purposes of the "Workers' Compensation
Act of Colorado" shall be based on the nine criteria found in section 8-40-202 (2) (b) (II)
which shall supersede the common law. The fact that an individual performs services
exclusively or primarily for another shall not be conclusive evidence that the individual is
an employee.
PART 2
DEFINITIONS
8-40-201. Definitions - repeal. As used in articles 40 to 47 of this title, unless the
context otherwise requires:
(1) "Accident" means an unforeseen event occurring without the will or design of
the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence;
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or the effect of an unknown cause or, the cause, being known, an unprecedented
consequence of it.
(2) "Accident", "injury", or "injuries" includes disability or death resulting from
accident or occupational disease as defined in subsection (14) of this section.
(2.5) (a) "Adverse action" means that the director, pursuant to part 5 of article 43
of this title or section 8-42-101 (3.6), has retroactively denied payment of fees,
recommended a change in treating physician, or excluded a health care provider from the
workers' compensation system by revoking the accreditation of any such health care
provider under section 8-42-101 (3.6).
(b) (I) This subsection (2.5) is repealed, effective July 1, 2014.
(II) Prior to such repeal, the accreditation process created by section 8-42-101
(3.5) and (3.6) shall be reviewed as provided for in section 24-34-104, C.R.S.
(3) "Board" means the board of directors of Pinnacol Assurance.
(3.4) "Chief executive officer" means the chief executive officer of Pinnacol
Assurance.
(3.5) Repealed.
(3.6) "Claimant" means a person who either:
(a) Receives benefits under articles 40 to 47 of this title; or
(b) Has or asserts, in any administrative or judicial forum or in any
communication with the director, the division, or an employer, insurer, or self-insured
employer, a right to receive such benefits.
(4) "Division" means the division of workers' compensation in the department of
labor and employment.
(5) "Director" means the director of the division of workers' compensation.
(6) "Employee" has the meaning set forth in section 8-40-202 and the scope of
such term is set forth in section 8-40-301.
(7) "Employer" has the meaning set forth in section 8-40-203 and the scope of
such term is set forth in section 8-40-302.
(8) "Employment" means any trade, occupation, job, position, or process of
manufacture or any method of carrying on any trade, occupation, job, position, or process
of manufacture in which any person may be engaged; except that it shall not include
participation in a ridesharing arrangement, as defined in section 39-22-509 (1) (a) (II),
C.R.S., and participation in such a ridesharing arrangement shall not affect the wages paid
to or hours or conditions of employment of an employee; nor shall it include the
employee's participation in a voluntary recreational activity or program, regardless of
whether the employer promoted, sponsored, or supported the recreational activity or
program.
(9) "Examiner" means one of the industrial claim appeals examiners appointed to
the industrial claim appeals panel in the industrial claim appeals office.
(10) "Executive director" means the executive director of the department of labor
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and employment.
(11) (Deleted by amendment, L. 2002, p. 1882, § 27, effective July 1, 2002.)
(11.5) "Maximum medical improvement" means a point in time when any
medically determinable physical or mental impairment as a result of injury has become
stable and when no further treatment is reasonably expected to improve the condition.
The requirement for future medical maintenance which will not significantly improve the
condition or the possibility of improvement or deterioration resulting from the passage of
time shall not affect a finding of maximum medical improvement. The possibility of
improvement or deterioration resulting from the passage of time alone shall not affect a
finding of maximum medical improvement.
(12) "Mediation" means a process through which parties involved in a dispute
concerning matters arising under articles 40 to 47 of this title meet with a mediator to
discuss such matter or matters, defining and articulating the issues and their positions on
such issues, with a goal of resolving such dispute or disputes.
(13) "Mediator" means an individual who is trained to assist disputants in reaching
a mutually acceptable resolution of their disputes through the identification and
evaluation of alternatives.
(13.5) (a) "Medical treatment guidelines" means a system of evaluation and
treatment guidelines for high cost or high frequency categories of occupational injury and
disease that will assure appropriate medical care at a reasonable cost.
(b) (I) This subsection (13.5) is repealed, effective July 1, 2014.
(II) Prior to such repeal, the accreditation process created by section 8-42-101
(3.5) and (3.6) shall be reviewed as provided for in section 24-34-104, C.R.S.
(14) "Occupational disease" means a disease which results directly from the
employment or the conditions under which work was performed, which can be seen to
have followed as a natural incident of the work and as a result of the exposure occasioned
by the nature of the employment, and which can be fairly traced to the employment as a
proximate cause and which does not come from a hazard to which the worker would have
been equally exposed outside of the employment.
(15) "Order" means and includes any decision, finding and award, direction, rule,
regulation, or other determination arrived at by the director or an administrative law
judge.
(15.5) "Overpayment" means money received by a claimant that exceeds the
amount that should have been paid, or which the claimant was not entitled to receive, or
which results in duplicate benefits because of offsets that reduce disability or death
benefits payable under said articles. For an overpayment to result, it is not necessary that
the overpayment exist at the time the claimant received disability or death benefits under
said articles.
(16) "Panel" means the industrial claim appeals panel that conducts administrative
appellate review pursuant to articles 40 to 47 of this title.
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(16.5) (a) "Permanent total disability" means the employee is unable to earn any
wages in the same or other employment. Except as provided in paragraph (b) of this
subsection (16.5), the burden of proof shall be on the employee to prove that the
employee is unable to earn any wages in the same or other employment.
(b) Total loss of or total loss of use of both hands, or both arms, or both feet, or
both legs, or both eyes, or any two thereof shall create a rebuttable presumption of
permanent total disability. "Total loss of use" shall be a medical determination, based
upon objective findings, made by an independent medical examiner who is a level II
accredited physician in the appropriate field.
(17) "Place of employment" means every place whether indoors, outdoors, or
underground and the premises, workplaces, works, and plants appertaining thereto or used
in connection therewith where either temporarily or permanently any industry, trade, or
business is carried on; or where any process or operation directly or indirectly relating to
any industry, trade, or business is carried on; or where any person is directly or indirectly
employed by another for direct or indirect gain or profit.
(18) "State" includes any state or territory of the United States, the District of
Columbia, and any province of Canada.
(18.5) "Temporary help contracting firm" means any person who is in the business
of employing individuals and, for compensation from a third party, providing those
individuals to perform work for the third party, under the supervision of the third party.
(19) (a) "Wages" shall be construed to mean the money rate at which the services
rendered are recompensed under the contract of hire in force at the time of the injury,
either express or implied.
(b) The term "wages" includes the amount of the employee's cost of continuing
the employer's group health insurance plan and, upon termination of the continuation, the
employee's cost of conversion to a similar or lesser insurance plan, and gratuities reported
to the federal internal revenue service by or for the worker for purposes of filing federal
income tax returns and the reasonable value of board, rent, housing, and lodging received
from the employer, the reasonable value of which shall be fixed and determined from the
facts by the division in each particular case, but does not include any similar advantage or
fringe benefit not specifically enumerated in this subsection (19). If, after the injury, the
employer continues to pay any advantage or fringe benefit specifically enumerated in this
subsection (19), including the cost of health insurance coverage or the cost of the
conversion of health insurance coverage, that advantage or benefit shall not be included
in the determination of the employee's wages so long as the employer continues to make
payment. Medicaid and other indigent health care programs are not health insurance plans
for the purposes of this section.
(c) No per diem payment shall be considered wages under this subsection (19)
unless it is also considered wages for federal income tax purposes.
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8-40-202. Employee. (1) "Employee" means:
(a) (I) (A) Every person in the service of the state, or of any county, city, town, or
irrigation, drainage, or school district or any other taxing district therein, or of any public
institution or administrative board thereof under any appointment or contract of hire,
express or implied; and every elective official of the state, or of any county, city, town, or
irrigation, drainage, or school district or any other taxing district therein, or of any public
institution or administrative board thereof; and every member of the military forces of the
state of Colorado while engaged in active service on behalf of the state under orders from
competent authority. Police officers and firefighters who are regularly employed shall be
deemed employees within the meaning of this paragraph (a), as shall also sheriffs and
deputy sheriffs, regularly employed, and all persons called to serve upon any posse in
pursuance of the provisions of section 30-10-516, C.R.S., during the period of their
service upon such posse, and all members of volunteer fire departments, including any
person receiving a retirement pension under section 31-30-1122, C.R.S., who serves as an
active volunteer firefighter of a fire department subsequent to retirement pursuant to
section 31-30-1132, C.R.S., or any person ordered by the chief or a designee of the chief's
at the scene of an emergency or during the period of an emergency to become a member
of that department for the duration of an emergency, and to perform the duties of a
firefighter, and only if the person who is so ordered reports any claim within ten days of
the cessation of the emergency, volunteer rescue teams or groups, volunteer disaster
teams, volunteer ambulance teams or groups, and volunteer search teams in any county,
city, town, municipality, or legally organized fire protection district or ambulance district
in the state of Colorado, and all members of the civil air patrol, Colorado wing, while said
persons are actually performing duties as volunteer firefighters or as members of such
volunteer rescue teams or groups, volunteer disaster teams, volunteer ambulance teams or
groups, or volunteer search teams or as members of the civil air patrol, Colorado wing,
and while engaged in organized drills, practice, or training necessary or proper for the
performance of such duties. Members of volunteer police departments, volunteer police
reserves, and volunteer police teams or groups in any county, city, town, or municipality,
while actually performing duties as volunteer police officers, may be deemed employees
within the meaning of this paragraph (a) at the option of the governing body of such
county or municipality.
(B) Notwithstanding the provisions of sub-subparagraph (A) of this subparagraph
(I), any elected or appointed official of any county, city, town, or irrigation, drainage, or
school district or taxing district who receives no compensation for service rendered as
such an official, other than reimbursement of actual expenses, may be deemed not to be
an employee within the meaning of this paragraph (a) at the option of the governing body
of such county, city, town, or district. The option to exclude such officials as employees
within the meaning of this paragraph (a) may be exercised as to any category of officials
or as to any combination of categories of officials. Any such option may be exercised for
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any policy year by the filing of a statement with the division not less than forty-five days
before the start of the policy year for which the option is to be exercised. If such a
statement is in effect as to any category of such uncompensated officials, no official in
said category shall be deemed an employee within the meaning of this paragraph (a). The
governing body shall notify each official of such action promptly at the time such election
to exclude is exercised.
(II) The rate of compensation of such persons accidentally injured, or, if killed,
the rate of compensation for their dependents, while serving upon such posse or as
volunteer firefighters or as members of such volunteer police departments, volunteer
police reserves, or volunteer police teams or groups or as members of such volunteer
rescue teams or groups, volunteer disaster teams, volunteer ambulance teams or groups,
or volunteer search teams or as members of the civil air patrol, Colorado wing, and of
every nonsalaried person in the service of the state, or of any county, city, town, or
irrigation, drainage, or school district therein, or of any public institution or administrative
board thereof under any appointment or contract of hire, express or implied, including
nonsalaried elective officials of the state, and of all members of the military forces of the
state of Colorado shall be at the maximum rate provided by articles 40 to 47 of this title;
except that this subparagraph (II) shall apply to an official described in sub-subparagraph
(B) of subparagraph (I) of this paragraph (a) only if no statement exercising the option to
exclude such official as an employee within the meaning of this paragraph (a) is in effect.
(III) Any person who, as part of a rehabilitation program of the social services
department of any county or city and county, is placed with a private employer for the
purpose of training or learning trades or occupations shall be deemed while so engaged to
be an employee of such private employer. Any person who receives a work experience
assignment to a position in any department or agency of any county or municipality, in
any school district, in the office of any state agency or political subdivision thereof, or in
any private for profit or any nonprofit agency pursuant to the provisions of part 7 of
article 2 of title 26, C.R.S., shall be deemed while so assigned to be an employee of the
respective department, agency, office, political subdivision, private for profit or nonprofit
agency, or school district to which said person is assigned or, if so negotiated between the
county and the entity to which the person is assigned, of the county arranging the work
experience assignment. Any person who receives a work experience assignment to a
position in any federal office or agency pursuant to part 7 of article 2 of title 26, C.R.S.,
shall be deemed while so assigned to be an employee of the county arranging the work
experience assignment. The rate of compensation for such persons if accidentally injured
or, if killed, for their dependents shall be based upon the wages normally paid in the
community in which they reside for the type of work in which they are engaged at the
time of such injury or death; except that, if any such person is a minor, compensation to
such minor for permanent disability, if any, or death benefits to such minor's dependents
shall be paid at the maximum rate of compensation payable under articles 40 to 47 of this
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title at the time of the determination of such disability or of such death.
(IV) Except as provided in section 8-40-301 (3) and section 8-40-302 (7) (a), any
person who may at any time be receiving training under any work or job training or
rehabilitation program sponsored by any department, board, commission, or institution of
the state of Colorado or of any county, city and county, city, town, school district, or
private or parochial school or college and who, as part of any such work or job training or
rehabilitation program of any department, board, commission, or institution of the state of
Colorado or of any county, city and county, city, town, school district, or private or
parochial school or college, is placed with any employer for the purpose of training or
learning trades or occupations shall be deemed while so engaged to be an employee of the
respective department, board, commission, or institution of the state of Colorado or of the
county, city and county, city, town, school district, or private or parochial school or
college sponsoring such training or rehabilitation program unless the following conditions
are met, in which case the placed person shall be deemed an employee of the employer
with whom he or she is placed:
(A) The sponsoring entity and the employer agree that the employer shall cover
the placed person under the employer's workers' compensation insurance;
(B) The employer does in fact insure and keep insured its liability for workers'
compensation as provided in articles 40 to 47 of this title and does in fact cover the placed
person under such insurance; and
(C) With respect to agreements between sponsoring entities and employers
entered into after April 1, 1991, the employer has been provided with notice of the
provisions of this subparagraph (IV) and of subparagraphs (V) and (VI) of this paragraph
(a).
(V) In the event a person placed with an employer is deemed an employee of the
employer pursuant to subparagraph (IV) of this paragraph (a), the sponsoring entity shall
not be subject to any liability for or on account of the death of or personal injury to the
person so placed. In the event such person is deemed an employee of the sponsoring
entity pursuant to the said subparagraph (IV), the employer shall not be subject to any
liability for or on account of the death of or personal injury to the person and shall not be
required to carry workers' compensation insurance or to pay premiums for workers'
compensation insurance with respect to the person.
(VI) The rate of compensation for a person placed pursuant to subparagraph (IV)
of this paragraph (a) if accidentally injured or, if killed, for dependents of such person
shall be based upon the wages normally paid in the community in which such person
resides or in the community where said work or job training or rehabilitation program is
being conducted for the type of work in which the person is engaged at the time of such
injury or death, as determined by the director; except that, if any such person is a minor,
compensation for such minor for permanent disability, if any, or death benefits to such
minor's dependents shall be paid at the maximum rate of compensation payable under
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articles 40 to 47 of this title at the time of the determination of such disability or death.
(b) Every person in the service of any person, association of persons, firm, or
private corporation, including any public service corporation, personal representative,
assignee, trustee, or receiver, under any contract of hire, express or implied, including
aliens and also including minors, whether lawfully or unlawfully employed, who for the
purpose of articles 40 to 47 of this title are considered the same and have the same power
of contracting with respect to their employment as adult employees, but not including any
persons who are expressly excluded from articles 40 to 47 of this title or whose
employment is but casual and not in the usual course of the trade, business, profession, or
occupation of the employer. The following persons shall also be deemed employees and
entitled to benefits at the maximum rate provided by said articles, and, in the event of
injury or death, their dependents shall likewise be entitled to such maximum benefits, if
and when the association, team, group, or organization to which they belong has elected
to become subject to articles 40 to 47 of this title and has insured its liability under said
articles: All members of privately organized volunteer fire departments, volunteer rescue
teams or groups, volunteer disaster teams, volunteer ambulance teams or groups, and
volunteer search teams and organizations while performing their respective duties as
members of such privately organized volunteer fire departments, volunteer rescue teams
or groups, volunteer disaster teams, volunteer ambulance teams or groups, and volunteer
search teams and organizations and while engaged in organized drills, practice, or training
necessary or proper for the performance of their respective duties.
(2) (a) Notwithstanding any other provision of this section, any individual who
performs services for pay for another shall be deemed to be an employee, irrespective of
whether the common-law relationship of master and servant exists, unless such individual
is free from control and direction in the performance of the service, both under the
contract for performance of service and in fact and such individual is customarily
engaged in an independent trade, occupation, profession, or business related to the service
performed. For purposes of this section, the degree of control exercised by the person for
whom the service is performed over the performance of the service or over the individual
performing the service shall not be considered if such control is exercised pursuant to the
requirements of any state or federal statute or regulation.
(b) (I) To prove that an individual is engaged in an independent trade, occupation,
profession, or business and is free from control and direction in the performance of the
service, the individual and the person for whom services are performed may show by a
preponderance of the evidence that the conditions set forth in paragraph (a) of this
subsection (2) have been satisfied. The parties may also prove independence through a
written document.
(II) To prove independence it must be shown that the person for whom services
are performed does not:
(A) Require the individual to work exclusively for the person for whom services
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are performed; except that the individual may choose to work exclusively for such person
for a finite period of time specified in the document;
(B) Establish a quality standard for the individual; except that the person may
provide plans and specifications regarding the work but cannot oversee the actual work or
instruct the individual as to how the work will be performed;
(C) Pay a salary or at an hourly rate instead of at a fixed or contract rate;
(D) Terminate the work of the service provider during the contract period unless
such service provider violates the terms of the contract or fails to produce a result that
meets the specifications of the contract;
(E) Provide more than minimal training for the individual;
(F) Provide tools or benefits to the individual; except that materials and equipment
may be supplied;
(G) Dictate the time of performance; except that a completion schedule and a
range of negotiated and mutually agreeable work hours may be established;
(H) Pay the service provider personally instead of making checks payable to the
trade or business name of such service provider; and
(I) Combine the business operations of the person for whom service is provided in
any way with the business operations of the service provider instead of maintaining all
such operations separately and distinctly.
(III) A document may satisfy the requirements of this paragraph (b) if such
document demonstrates by a preponderance of the evidence the existence of the factors
listed in subparagraph (II) of this paragraph (b) as are appropriate to the parties' situation.
The existence of any one of these factors is not conclusive evidence that the individual is
an employee.
(IV) If the parties use a written document pursuant to this paragraph (b), such
document must be signed by both parties and may be the contract for performance of
service or a separate document. Such document shall create a rebuttable presumption of
an independent contractor relationship between the parties where such document contains
a disclosure, in type which is larger than the other provisions in the document or in boldfaced or underlined type, that the independent contractor is not entitled to workers'
compensation benefits and that the independent contractor is obligated to pay federal and
state income tax on any moneys earned pursuant to the contract relationship. All
signatures on any such document must be duly notarized.
(V) If the parties use a written document pursuant to this paragraph (b) and one of
the parties is a professional whose license to practice a particular occupation under the
laws of the state of Colorado requires such professional to exercise a supervisory function
with regard to an entire project such supervisory role shall not affect such professional's
status as part of the independent contractor relationship.
(c) Nothing in this section shall be construed to conflict with section 8-40-301 or
to relieve any obligations imposed pursuant thereto.
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(d) Nothing in this section shall be construed to remove the claimant's burden of
proving the existence of an employer-employee relationship for purposes of receiving
benefits pursuant to articles 40 to 47 of this title.
(e) (I) Notwithstanding any other provision of this section, a written agreement
between a nonprofit youth sports organization and a coach, specifying that the coach is an
independent contractor and not an employee of the nonprofit youth sports organization
and otherwise satisfying the requirements of this paragraph (e), shall be conclusive
evidence that the relationship between the nonprofit youth sports organization and the
coach is an independent contractor relationship rather than an employment relationship
and that the nonprofit youth sports organization is not obligated to secure compensation
for the coach in accordance with the "Workers' Compensation Act of Colorado".
(II) The written agreement shall contain a disclosure, in bold-faced, underlined, or
large type, in a conspicuous location, and acknowledged by the parties by signature,
initials, or other means demonstrating that the parties have read and understand the
disclosure, indicating that the coach:
(A) Is an independent contractor and not an employee of the nonprofit youth
sports organization;
(B) Is not entitled to workers' compensation benefits in connection with his or her
contract with the nonprofit youth sports organization; and
(C) Is obligated to pay federal and state income tax on any moneys paid pursuant
to the contract for coaching services and that the nonprofit youth sports organization will
not withhold any amounts from the coach for purposes of satisfying the coach's income
tax liability.
(III) A written agreement between a nonprofit youth sports organization and a
coach in accordance with this paragraph (e) shall not be conclusive evidence of an
independent contractor relationship for purposes of any civil action instituted by a third
party.
(IV) As used in this paragraph (e), "nonprofit youth sports organization" means an
organization that is exempt from federal taxation under section 501 (c) (3) of the federal
"Internal Revenue Code of 1986", as amended, and is primarily engaged in conducting
organized sports programs for persons under twenty-one years of age.
(3) Notwithstanding any other provision of this section, "employee" includes a
person who participates in a property tax work-off program established pursuant to article
3.7 of title 39, C.R.S.
8-40-203. Employer. (1) "Employer" means:
(a) The state, and every county, city, town, and irrigation, drainage, and school
district and all other taxing districts therein, and all public institutions and administrative
boards thereof without regard to the number of persons in the service of any such public
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employer. All such public employers shall be at all times subject to the compensation
provisions of articles 40 to 47 of this title.
(b) Every person, association of persons, firm, and private corporation, including
any public service corporation, personal representative, assignee, trustee, or receiver, who
has one or more persons engaged in the same business or employment, except as
otherwise expressly provided in articles 40 to 47 of this title, in service under any contract
of hire, express or implied.
(c) Repealed.
PART 3
SCOPE AND APPLICABILITY
8-40-301. Scope of term "employee". (1) "Employee" excludes any person
employed by a passenger tramway area operator, as defined in section 25-5-702 (1),
C.R.S., or other employer, while participating in recreational activity, who at such time is
relieved of and is not performing any duties of employment, regardless of whether such
person is utilizing, by discount or otherwise, a pass, ticket, license, permit, or other device
as an emolument of employment.
(2) "Employee" excludes any person who is a licensed real estate sales agent or a
licensed real estate broker associated with another real estate broker if:
(a) Substantially all of the sales agent's or associated broker's remuneration from
real estate brokerage is derived from real estate commissions; and
(b) The services of the sales agent or associated broker are performed under a
written contract specifying that the sales agent or associated broker is an independent
contractor; and
(c) Such contract provides that the sales agent or associated broker shall not be
treated as an employee for federal income tax purposes.
(3) (a) Notwithstanding the provisions of section 8-40-202 (1) (a) (IV),
"employee" excludes any person who is confined to a city or county jail or any
department of corrections facility as an inmate and who, as a part of such confinement, is
working, performing services, or participating in a training or rehabilitation or work
release program; except that "employee" includes an inmate of a department of
corrections facility or a city, county, or city and county jail who is working, performing
services, or participating in a training, rehabilitation, or work release program that has
been certified by the federal prison industry enhancement certification program pursuant
to the federal "Justice System Improvement Act of 1979", 18 U.S.C. sec. 1761 (c). For the
purposes of articles 40 to 47 of this title, an inmate participating in a program certified by
the federal prison industry enhancement certification program is an employee of that
certified program, which certified program shall carry workers' compensation insurance
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pursuant to articles 40 to 47 of this title. No inmate participating in a certified program
shall be deemed to be an employee of the state, city, county, or city and county that owns,
operates, or contracts for the operation of the facility or jail in which the inmate is
incarcerated.
(b) The provisions of paragraph (a) of this subsection (3) do not apply to an
inmate who is working for a private employer under a contract of hire wherein the private
employer is required to maintain workers' compensation insurance for its employees
pursuant to articles 40 to 47 of this title. Such inmate shall be an employee of such private
employer for purposes of articles 40 to 47 of this title.
(c) The provisions of paragraph (a) of this subsection (3) do not apply to an
inmate working for a joint venture established pursuant to the provisions of section 1724-119 or 17-24-121, C.R.S. Such inmate shall be an employee of such joint venture for
purposes of articles 40 to 47 of this title.
(d) The provisions of paragraph (a) of this subsection (3) do not apply to an
inmate working for a private person or entity pursuant to the provisions of section 17-24122, C.R.S. Such inmate shall be an employee of such private person or entity for
purposes of articles 40 to 47 of this title.
(4) "Employee" excludes any person who volunteers time or services for a ski area
operator, as defined in section 33-44-103 (7), C.R.S., or for a ski area sponsored program
or activity, notwithstanding the fact that such person may receive noncash remuneration
for such person or such person's designee in conjunction with such person's status as a
volunteer. No contract of hire, express or implied, is created between any volunteer
pursuant to this section and a ski area operator. Notice shall be given to such volunteer in
writing that the volunteering of time or services under this subsection (4) does not
constitute employment for purposes of the "Workers' Compensation Act of Colorado" and
that such person is not entitled to benefits pursuant to said act.
(5) "Employee" excludes any person who is working as a driver under a lease
agreement pursuant to section 40-11.5-102, C.R.S., with a common carrier or contract
carrier.
(6) Any person working as a driver with a common carrier or contract carrier as
described in this section shall be eligible for and shall be offered workers' compensation
insurance coverage by Pinnacol Assurance or similar coverage consistent with the
requirements set forth in section 40-11.5-102 (5), C.R.S.
(7) Persons who provide host home services as part of residential services and
supports, as described in section 27-10.5-104 (1) (f), C.R.S., for an eligible person, as
defined in section 25.5-6-403 (2) (a), C.R.S., pursuant to the "Home- and Communitybased Services for Persons with Developmental Disabilities Act", part 4 of article 6 of
title 25.5, C.R.S., and pursuant to a contract with a community centered board designated
pursuant to section 27-10.5-105, C.R.S., or a contract with a service agency as defined in
section 27-10.5-102 (28), C.R.S., shall not be considered employees of the community
Colorado Revised Statutes 2013
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centered board or the service agency.
Editor's note: This version of subsection (7) is effective until March 1, 2014.
(7) Persons who provide host home services as part of residential services and
supports, as described in section 25.5-10-206 (1) (e), C.R.S., for an eligible person, as
defined in section 25.5-6-403 (2) (a), C.R.S., pursuant to the "Home- and Communitybased Services for Persons with Developmental Disabilities Act", part 4 of article 6 of
title 25.5, C.R.S., and pursuant to a contract with a community-centered board designated
pursuant to section 25.5-10-209, C.R.S., or a contract with a service agency as defined in
section 25.5-10-202, C.R.S., shall not be considered employees of the communitycentered board or the service agency.
Editor's note: This version of subsection (7) is effective March 1, 2014.
(8) For the purposes of articles 40 to 47 of this title, "employee" excludes any
person who performs services for more than one employer at a race meet as defined by
section 12-60-102 (22), C.R.S., or at a horse track as defined by section 12-60-102 (11),
C.R.S.
(9) Notwithstanding any other provision of this section, "employee" includes a
person who participates in a property tax work-off program established pursuant to article
3.7 of title 39, C.R.S.
8-40-302. Scope of term "employer".
(1) Repealed.
(2) Articles 40 to 47 of this title are not intended to apply to employees of
eleemosynary, charitable, fraternal, religious, or social employers who are elected or
appointed to serve in an advisory capacity and receive an annual salary or an amount not
in excess of seven hundred fifty dollars and are not otherwise subject to the "Workers'
Compensation Act of Colorado".
(3) Articles 40 to 47 of this title are not intended to apply to employers of casual
farm and ranch labor or employers of persons who do casual maintenance, repair,
remodeling, yard, lawn, tree, or shrub planting or trimming, or similar work about the
place of business, trade, or profession of the employer if such employers have no other
employees subject to said articles 40 to 47, if such employments are casual and are not
within the course of the trade, business, or profession of said employers, if the amounts
expended for wages paid by the employers to casual persons employed to do
maintenance, repair, remodeling, yard, lawn, tree, or shrub planting or trimming, or
similar work about the place of business, trade, or profession of the employer do not
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exceed the sum of two thousand dollars for any calendar year, and if the amounts
expended for wages by the employer of casual farm and ranch labor do not exceed the
sum of two thousand dollars for any calendar year.
(4) Articles 40 to 47 of this title are not intended to apply to employers of persons
who do domestic work or maintenance, repair, remodeling, yard, lawn, tree, or shrub
planting or trimming, or similar work about the private home of the employer if such
employers have no other employees subject to said articles 40 to 47 and if such
employments are not within the course of the trade, business, or profession of said
employers. This exemption shall not apply to such employers if the persons who perform
the work are regularly employed by such employers on a full-time basis. For purposes of
this subsection (4), "full-time" means work performed for forty hours or more a week or
on five days or more a week.
(5) (a) Any employer excluded under this section may elect to accept the
provisions of articles 40 to 47 of this title by purchasing and keeping in force a policy of
workers' compensation insurance covering said employees.
(b) Notwithstanding any other provision of articles 40 to 47 of this title, any
working general partner or sole proprietor actively engaged in the business may elect to
be included by endorsement as an employee of the insured and shall be entitled to elect
coverage regardless of whether such working general partner or sole proprietor employs
any other person under any contract of hire.
(6) Articles 40 to 47 of this title are intended to apply to officers of agricultural
corporations; but effective July 1, 1977, any such agricultural corporation may elect to
reject the provisions of articles 40 to 47 of this title for any or all of said officers.
(7) (a) Any employer, as defined in section 8-40-203, who enters into a bona fide
cooperative education or student internship program sponsored by an educational
institution for the purpose of providing on-the-job training for students shall be deemed
an employer of such students for the purposes of workers' compensation and liability
insurance pursuant to articles 40 to 47 of this title.
(b) If the student placed in an on-the-job training program does not receive any
pay or remuneration from the employer, the educational institution sponsoring the student
in the cooperative education or student internship program shall insure the student
through the institution's workers' compensation and liability insurance or enter into
negotiations with the employer for the purpose of arriving at a reasonable level of
compensation to the employer for the employer's expense of providing workers'
compensation and liability insurance while such student is participating in on-the-job
training with said employer. This paragraph (b) shall not apply to a student teacher
participating in a program authorized pursuant to article 62 of title 22, C.R.S.
(c) As used in this subsection (7), "cooperative education or student internship
program" means a program sponsored by an educational institution in which a student is
taught through a coordinated combination of specialized in-the-school instruction
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provided through an educational institution by qualified teachers and on-the-job training
provided through a local business, agency, or organization or any governmental agency in
cooperation with the educational institution.
ARTICLE 41
Coverage and Liability
PART 1
ABROGATION OF DEFENSE
8-41-101.
Assumption of risk - negligence of employee or fellow
servant. (1) In an action to recover damages for a personal injury sustained by an
employee while engaged in the line of duty, or for death resulting from personal injuries
so sustained, in which recovery is sought upon the ground of want of ordinary care of the
employer, or of the officer, agent, or servant of the employer, it shall not be a defense:
(a) That the employee, either expressly or impliedly, assumed the risk of the
hazard complained of as due to the employer's negligence;
(b) That the injury or death was caused, in whole or in part, by the want of
ordinary care of a fellow servant;
(c) That the injury or death was caused, in whole or in part, by the want of
ordinary care of the injured employee where such want of care was not willful.
8-41-102. Liability of employer complying. An employer who has complied
with the provisions of articles 40 to 47 of this title, including the provisions relating to
insurance, shall not be subject to the provisions of section 8-41-101; nor shall such
employer or the insurance carrier, if any, insuring the employer's liability under said
articles be subject to any other liability for the death of or personal injury to any
employee, except as provided in said articles; and all causes of action, actions at law, suits
in equity, proceedings, and statutory and common law rights and remedies for and on
account of such death of or personal injury to any such employee and accruing to any
person are abolished except as provided in said articles.
8-41-103. Availability of common-law defenses. If an employer has complied
with the provisions of articles 40 to 47 of this title, including the provisions thereof
relating to insurance, and an action is brought against such employer or such employer's
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insurance carrier to recover damages for personal injuries or death sustained by an
employee who has elected not to come under said articles, such employer and such
employer's insurance carrier shall have all the defenses to the action which they would
have had if said articles and part 2 of article 2 of this title had not been enacted.
8-41-104. Acceptance as surrender of other remedies. An election under the
provisions of section 8-40-302 (5) and in compliance with the provisions of articles 40 to
47 of this title, including the provisions for insurance, shall be construed to be a surrender
by the employer, such employer's insurance carrier, and the employee of their rights to
any method, form, or amount of compensation or determination thereof or to any cause of
action, action at law, suit in equity, or statutory or common-law right, remedy, or
proceeding for or on account of such personal injuries or death of such employee other
than as provided in said articles, and shall be an acceptance of all the provisions of said
articles, and shall bind the employee personally, and, for compensation for such
employee's death, the employee's personal representatives, surviving spouse, and next of
kin, as well as the employer, such employer's insurance carrier, and those conducting their
business during bankruptcy or insolvency.
PART 2
COVERAGE
8-41-201. Not applicable to common carriers. The provisions of articles 40 to
47 of this title shall not apply to common carriers by railroad but shall apply to all other
employers as defined in said articles engaged in intrastate or interstate commerce, or both,
except those employers, other than the Colorado division of civil air patrol, for whom a
rule of liability is established by the laws of the United States.
8-41-202.
Rejection of coverage by corporate officers and
others. (1) Notwithstanding any provisions of articles 40 to 47 of this title to the
contrary, a corporate officer of a corporation or a member of a limited liability company
may elect to reject the provisions of articles 40 to 47 of this title. If so elected, said
corporate officer or member shall provide written notice on a form approved by the
division through a rule promulgated by the director of such election to the worker's
compensation insurer of the employing corporation or company, if any, by certified mail.
If there is no workers' compensation insurance company, the notice shall be provided to
the division by certified mail. Such notice shall become effective the day following
receipt of said notice by the insurer or the division.
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(2) A corporate officer's or member's election to reject the provisions of articles
40 to 47 of this title shall continue in effect so long as the corporation's or company's
insurance policy is in effect or until said officer or member, by written notice to the
insurer, revokes the election to reject said provisions.
(3) Nothing in this section shall be construed to limit the responsibility of
corporations or limited liability companies to provide coverage for their employees as
required under articles 40 to 47 of this title. An election to reject coverage pursuant to this
section may not be made a condition of employment.
(4) For the purposes of this section:
(a) "Corporate officer" means the chairperson of the board, president, vicepresident, secretary, or treasurer who is an owner of at least ten percent of the stock of the
corporation and who controls, supervises, or manages the business affairs of the
corporation, as attested to by the secretary of the corporation at the time of the election.
(b) "Member" means an owner of at least ten percent of the membership interest
of the limited liability company at all times and who controls, supervises, or manages the
business affairs of the limited liability company.
8-41-203. Negligence of stranger - remedies - subrogation - actions compromise. (1) (a) If any employee entitled to compensation under articles 40 to 47 of
this title is injured or killed by the negligence or wrong of another not in the same
employ, such injured employee or, in case of death, such employee's dependents, may
take compensation under said articles and may also pursue a remedy against the other
person to recover any damages in excess of the compensation available under said
articles.
(b) The payment of compensation pursuant to articles 40 to 47 of this title shall
operate as and be an assignment of the cause of action against such other person to
Pinnacol Assurance, the medical disaster insurance fund, the major medical insurance
fund, or the subsequent injury fund, if compensation is payable from said funds, and
otherwise to the person, association, corporation, or insurance carrier liable for the
payment of such compensation. Said insurance carrier shall not be entitled to recover any
sum in excess of the amount of compensation for which said carrier is liable under said
articles to the injured employee, but to that extent said carrier shall be subrogated to the
rights of the injured employee against said third party causing the injury. If the injured
employee proceeds against such other person, then Pinnacol Assurance, the medical
disaster insurance fund, the major medical insurance fund, the subsequent injury fund, or
such other person, association, corporation, or insurance carrier, as the case may be, shall
contribute only the deficiency, if any, between the amount of the recovery against such
other person actually collected and the compensation provided by said articles in such
case.
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(c) The right of subrogation provided by this section shall apply to and include all
compensation and all medical, hospital, dental, funeral, and other benefits and expenses to
which the employee or, if the employee is deceased, the employee's dependents are
entitled under the provisions of said articles, including parts 2 and 3 of article 46 of this
title, or for which the employee's employer or insurance carrier is liable or has assumed
liability.
(d) The assigned and subrogated cause of action provided by this section, together
with the right to recover future benefits:
(I) Shall extend to all moneys collected from the third party causing the injury for
all:
(A) Economic damages; and
(B) Physical impairment and disfigurement damages; except that, to the extent the
trier of fact makes a separate award for disfigurement damages, the right of the
beneficiary of the assigned interest to recover from such disfigurement damages shall be
limited to the amount the beneficiary of the assigned interest paid, or is obligated to pay,
in disfigurement damages pursuant to articles 40 to 47 of this title; and
(II) Shall not extend to moneys collected for noneconomic damages awarded for
pain and suffering, inconvenience, emotional stress, or impairment of quality of life.
(e) (I) Except as otherwise provided in subparagraph (II) of this paragraph (e), the
amount of the assigned and subrogated cause of action shall be reduced by an amount
equal to the reasonable attorney fees and costs paid by the injured employee or, if the
employee is deceased, the employee's dependents, in pursuing the recovery of the
assigned and subrogated cause of action and the collection of such recovery.
(II) If the beneficiary of the assigned and subrogated cause of action elects to
independently pursue such assigned cause of action, any recovery by such beneficiary
shall not be reduced by any attorney fees and costs incurred by the employee. If the
beneficiary of the assigned and subrogated cause of action elects to intervene within
ninety days after receiving the notice required by paragraph (c) of subsection (4) of this
section, any recovery by such beneficiary shall not be reduced by any attorney fees and
costs incurred by the employee. If such beneficiary elects to intervene after the expiration
of such ninety-day period, the court may reduce the beneficiary's recovery by a reasonable
amount for any attorney fees and costs incurred by the employee after the end of such
ninety-day period and before receiving notice that the beneficiary intends to intervene.
(f) Nothing in this section shall be construed as limiting in any way the right of the
injured employee to take compensation under articles 40 to 47 of this title and also
proceed against the third party causing the injury to recover any damages in excess of the
subrogation rights described in this section.
(2) Such a cause of action assigned to Pinnacol Assurance may be prosecuted or
compromised by it. A compromise of any such cause of action by the employee or, if the
employee is deceased, the employee's dependents at an amount less than the
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compensation provided for by articles 40 to 47 of this title shall be made only with the
written approval of the chief executive officer of Pinnacol Assurance, if the deficiency of
compensation would be payable from the Pinnacol Assurance fund, and otherwise with
the written approval of the person, association, corporation, or insurance carrier liable to
pay the same. Such written approval shall not be unreasonably withheld. Failure to obtain
such written approval shall entitle the party responsible for paying workers' compensation
benefits to be reimbursed for all benefits paid from, and offset any future liability under
articles 40 to 47 of this title against, the entire proceeds recovered without any credit for
reasonable attorney fees and costs as provided in paragraph (e) of subsection (1) of this
section. If such approval is not obtained, the employee or, if the employee is deceased, the
employee's dependents shall not be liable for any plaintiff's attorney fees for the thirdparty recovery on that portion of any recovery equal to the assigned and subrogated
interest and are not subject to any action for refusal to pay such plaintiff's attorney fees
resulting from the third-party case.
(3) If an employee is killed by the negligence or wrong of another not in the same
employ and the dependents of such employee who are entitled to compensation under
articles 40 to 47 of this title are minors, the decision to pursue or compromise any claim
against a third party shall be made by such minor or shall be made on the minor's behalf
by a parent of such minor or by the minor's next friend or duly appointed guardian, as the
director of the division of workers' compensation may determine by rule in each case.
Once such decision is made, the person who made the decision shall also bear the
responsibility to provide all notices required by this section.
(4) (a) (I) If the employee or, if the employee is deceased, the employee's
dependents make a demand upon or a request of a person or entity not in the same employ
as the employee to seek recovery for damages arising from actions of such other person or
entity, the employee or dependents shall also give written notice, within ten days, to the
division of workers' compensation and to all parties who may be responsible for paying
benefits to the employee or dependents under articles 40 to 47 of this title.
(II) If the party responsible for paying workers' compensation benefits under
articles 40 to 47 of this title to the employee or, if the employee is deceased, the
employee's dependents, makes a demand upon or a request of a person or entity not in the
same employ as the employee to seek recovery for damages arising from actions of the
other person or entity, the party responsible for paying the workers' compensation benefits
shall also give written notice, within ten days, to the division of workers' compensation
and to the employee or, if the employee is deceased, to the employee's dependents.
(III) The notice requirements of this paragraph (a) shall not apply to demands or
requests seeking the recovery of medical payments only, and not seeking the recovery of
any other type of damage or loss.
(b) The notice required by this subsection (4) shall contain the following:
(I) A description of the claim;
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(II) The names and addresses of any and all other persons believed to be
negligent;
(III) The name and address of any attorney representing the employee or
dependents;
(IV) The name and address of any attorney representing other persons believed to
be negligent; and
(V) The name, address, and telephone number of the insurance company or thirdparty administrator.
(c) (I) Except as provided in subparagraph (II) of this paragraph (c), at least
twenty days before commencing a lawsuit or arbitration proceeding to recover damages
arising from actions of another person or entity, the party initiating such lawsuit or
arbitration shall give written notice to all parties who may be responsible for paying
benefits to the employee or dependents under articles 40 to 47 of this title and to the
employee or, if the employee is deceased, the employee's dependents. Such notice shall
contain all of the information set out in paragraph (b) of this subsection (4) and shall be
accompanied by a draft copy of the complaint.
(II) If any applicable statutory limitation period would expire before such twenty
days have passed, the party initiating such lawsuit or arbitration may file or serve the
complaint, or otherwise act to toll the running of such limitation period, before such
twenty days have passed. The party initiating the lawsuit or arbitration shall provide the
notice required by subparagraph (I) of this paragraph (c) within twenty days after
commencing such action.
(d) If the employee or dependents fail to provide the written notice required
pursuant to subparagraph (I) of paragraph (a) of this subsection (4):
(I) The party responsible for paying workers' compensation benefits shall be
entitled to reimbursement from all moneys collected from the third party for all economic
damages and for all physical impairment and disfigurement damages, without any credit
for reasonable attorney fees as provided in paragraph (e) of subsection (1) of this section.
If the trier of fact makes a separate award for disfigurement damages, reimbursement
from such disfigurement damage award shall be limited to the amount the party paying
workers' compensation benefits paid, or is obligated to pay, in disfigurement damages
pursuant to articles 40 to 47 of this title. Such rights shall not extend to moneys collected
for noneconomic damages awarded for pain and suffering, inconvenience, emotional
stress, or impairment of quality of life.
(II) The employee or dependents shall not be liable for any plaintiff's attorney fees
for the third-party recovery on that portion of any recovery equal to the assigned and
subrogated interest and are not subject to any action for refusal to pay such plaintiff's
attorney fees resulting from the third-party case.
(e) If the party responsible for paying workers' compensation benefits under
articles 40 to 47 of this title fails to provide the written notice required pursuant to
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subparagraph (II) of paragraph (a) of this subsection (4), the amount of the claim shall be
reduced by fifty dollars for each day such notice was not given to the employee or, if the
employee is deceased, the employee's dependents, in an amount not to exceed twenty
percent of the amount of the total assigned interest at the time such notice should have
been given. The failure to provide such notice shall be a reassignment of a portion of the
claim to the employee or, if the employee is deceased, the employee's dependents, in an
amount equal to the penalty.
8-41-204. Injury outside of state - benefits in accordance with state law. If an
employee who has been hired or is regularly employed in this state receives personal
injuries in an accident or an occupational disease arising out of and in the course of such
employment outside of this state, the employee, or such employee's dependents in case of
death, shall be entitled to compensation according to the law of this state. This provision
shall apply only to those injuries received by the employee within six months after leaving
this state, unless, prior to the expiration of such six-month period, the employer has filed
with the division notice that the employer has elected to extend such coverage for a
greater period of time.
8-41-205. Waiver of compensation by employee - approval required exception. No waiver of compensation or medical benefits by an employee for
aggravation of any preexisting condition or disease shall be allowed under articles 40 to
47 of this title. This section, however, shall not invalidate any such waiver so filed and
approved prior to March 1, 1977, under the provisions of the "Colorado Occupational
Disease Disability Act", which was repealed effective September 1, 1975.
8-41-206. Disability beginning five years after injury. Any disability beginning
more than five years after the date of injury shall be conclusively presumed not to be due
to the injury, except in cases of disability or death resulting from exposure to radioactive
materials, substances, or machines or to fissionable materials, or any type of malignancy
caused thereby, or from poisoning by uranium or its compounds, or from asbestosis,
silicosis, or anthracosis.
8-41-207. Death after two years. In case death occurs more than two years after
the date of receiving any injury, such death shall be prima facie presumed not to be due to
such injury; such presumption shall not apply in cases of silicosis, asbestosis, anthracosis,
or disability or death resulting from exposure to radioactive materials, substances, or
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machines or to fissionable materials, or any type of malignancy caused thereby, or from
poisoning by uranium or its compounds. In all other cases, such presumption may be
rebutted by competent evidence.
8-41-208. Coverage for job-related exposure to or contraction of hepatitis
C. (1) The exposure to or contraction of hepatitis C by a firefighter, emergency services
provider, or peace officer, as described in section 16-2.5-101, C.R.S., shall be presumed
to be within the course and scope of employment if the following conditions are satisfied:
(a) A baseline test shall be provided by the employer, or if insured, by the insurer,
to be performed within five days after the employee reports the on-the-job exposure. The
employee must report the exposure within two days after the employee knew or
reasonably should have known of the exposure;
(b) The baseline test establishes that the employee was not infected with hepatitis
C at the time of the on-the-job exposure;
(c) The employee complies with reasonable and necessary medical procedures set
forth in section 8-42-101 (1) (c);
(d) The employee is determined to have hepatitis C within twenty-four months
after the on-the-job exposure to the known or possible source.
(2) The exposure to or contraction of hepatitis C by a firefighter, emergency
services provider, or peace officer, as described in section 16-2.5-101, C.R.S., shall not be
deemed to be within the course and scope of employment if an employer or insurer shows
by a preponderance of the evidence that such exposure or contraction did not occur on the
job.
8-41-209.
Coverage for occupational diseases contracted by
firefighters. (1) Death, disability, or impairment of health of a firefighter of any political
subdivision who has completed five or more years of employment as a firefighter, caused
by cancer of the brain, skin, digestive system, hematological system, or genitourinary
system and resulting from his or her employment as a firefighter, shall be considered an
occupational disease.
(2) Any condition or impairment of health described in subsection (1) of this
section:
(a) Shall be presumed to result from a firefighter's employment if, at the time of
becoming a firefighter or thereafter, the firefighter underwent a physical examination that
failed to reveal substantial evidence of such condition or impairment of health that
preexisted his or her employment as a firefighter; and
(b) Shall not be deemed to result from the firefighter's employment if the
firefighter's employer or insurer shows by a preponderance of the medical evidence that
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such condition or impairment did not occur on the job.
(3) Repealed.
8-41-210.
Coverage for property tax work-off program
participants. Notwithstanding any provision of law to the contrary, a governmental entity
or private nonprofit or for-profit entity that has a contract with a governmental entity that
is self-insured under articles 40 to 47 of this title may purchase workers' compensation
insurance from any insurer authorized to transact the business of workers' compensation
insurance in this state for the express purpose of covering participants in the property tax
work-off program established pursuant to article 3.7 of title 39, C.R.S.
PART 3
LIABILITY
8-41-301. Conditions of recovery. (1) The right to the compensation provided
for in articles 40 to 47 of this title, in lieu of any other liability to any person for any
personal injury or death resulting therefrom, shall obtain in all cases where the following
conditions occur:
(a) Where, at the time of the injury, both employer and employee are subject to the
provisions of said articles and where the employer has complied with the provisions
thereof regarding insurance;
(b) Where, at the time of the injury, the employee is performing service arising out
of and in the course of the employee's employment;
(c) Where the injury or death is proximately caused by an injury or occupational
disease arising out of and in the course of the employee's employment and is not
intentionally self-inflicted.
(2) (a) A claim of mental impairment must be proven by evidence supported by
the testimony of a licensed physician or psychologist. For purposes of this subsection (2),
"mental impairment" means a recognized, permanent disability arising from an accidental
injury arising out of and in the course of employment when the accidental injury involves
no physical injury and consists of a psychologically traumatic event that is generally
outside of a worker's usual experience and would evoke significant symptoms of distress
in a worker in similar circumstances. A mental impairment shall not be considered to
arise out of and in the course of employment if it results from a disciplinary action, work
evaluation, job transfer, lay-off, demotion, promotion, termination, retirement, or similar
action taken in good faith by the employer. The mental impairment that is the basis of the
claim shall have arisen primarily from the claimant's then occupation and place of
employment in order to be compensable.
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(a.5) For purposes of this subsection (2), "mental impairment" also includes a
disability arising from an accidental physical injury that leads to a recognized permanent
psychological disability.
(b) Notwithstanding any other provision of articles 40 to 47 of this title, where a
claim is by reason of mental impairment, the claimant shall be limited to twelve weeks of
medical impairment benefits, which shall be in an amount not less than one hundred fifty
dollars per week and not more than fifty percent of the state average weekly wage,
inclusive of any temporary disability benefits; except that this limitation shall not apply to
any victim of a crime of violence, without regard to the intent of the perpetrator of the
crime, nor to the victim of a physical injury or occupational disease that causes
neurological brain damage; and nothing in this section shall limit the determination of the
percentage of impairment pursuant to section 8-42-107 (8) for the purposes of
establishing the applicable cap on benefits pursuant to section 8-42-107.5.
(c) The claim of mental impairment cannot be based, in whole or in part, upon
facts and circumstances that are common to all fields of employment.
(d) The mental impairment which is the basis of the claim must be, in and of
itself, either sufficient to render the employee temporarily or permanently disabled from
pursuing the occupation from which the claim arose or to require medical or
psychological treatment.
8-41-302.
Scope of terms - "accident" - "injury" - "occupational
disease". (1) "Accident", "injury", and "occupational disease" shall not be construed to
include disability or death caused by or resulting from mental or emotional stress unless it
is shown by competent evidence that such mental or emotional stress is proximately
caused solely by hazards to which the worker would not have been equally exposed
outside the employment.
(2) "Accident", "injury", and "occupational disease" shall not be construed to
include disability or death caused by heart attack unless it is shown by competent
evidence that such heart attack was proximately caused by an unusual exertion arising out
of and within the course of the employment.
8-41-303. Loaning employer liable for compensation. Where an employer, who
has accepted the provisions of articles 40 to 47 of this title and has complied therewith,
loans the service of any of the employer's employees who have accepted the provisions of
said articles to any third person, the employer shall be liable for any compensation
thereafter for any injuries or death of said employee as provided in said articles, unless it
appears from the evidence in said case that said loaning constitutes a new contract of hire,
express or implied, between the employee whose services were loaned and the person to
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whom the employee was loaned.
8-41-304. Last employer liable - exception. (1) Where compensation is payable
for an occupational disease, the employer in whose employment the employee was last
injuriously exposed to the hazards of such disease and suffered a substantial permanent
aggravation thereof and the insurance carrier, if any, on the risk when such employee was
last so exposed under such employer shall alone be liable therefor, without right to
contribution from any prior employer or insurance carrier. In the case of silicosis,
asbestosis, or anthracosis, the only employer and insurance carrier liable shall be the last
employer in whose employment the employee was last exposed to harmful quantities of
silicon dioxide (SiO2) dust, asbestos dust, or coal dust on each of at least sixty days or
more and the insurance carrier, if any, on the risk when the employee was last so exposed
under such employer.
(2) In any case where an employee of an employer becomes disabled from
silicosis, asbestosis, anthracosis, or poisoning or disease caused by exposure to
radioactive materials, substances, or machines or to fissionable materials, or any type of
malignancy caused thereby, or in the event death results from silicosis, asbestosis,
anthracosis, or poisoning or disease caused by exposure to radioactive materials,
substances, or machines or to fissionable materials, or any type of malignancy caused
thereby, and, if such employee has been injuriously exposed to such diseases while in the
employ of another employer during the employee's lifetime, the last employer or that
employer's insurance carrier, if any, shall be liable for compensation and medical benefits
as provided by articles 40 to 47 of this title, including funeral expenses and death
benefits.
PART 4
CONTRACTORS AND LESSEES
8-41-401.
Lessor contractor-out deemed employer - liability recovery. (1) (a) (I) Any person, company, or corporation operating or engaged in or
conducting any business by leasing or contracting out any part or all of the work thereof
to any lessee, sublessee, contractor, or subcontractor, irrespective of the number of
employees engaged in such work, shall be construed to be an employer as defined in
articles 40 to 47 of this title and shall be liable as provided in said articles to pay
compensation for injury or death resulting therefrom to said lessees, sublessees,
contractors, and subcontractors and their employees or employees' dependents, except as
otherwise provided in subsection (3) of this section.
(II) Notwithstanding subparagraph (I) of this paragraph (a) and any other
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provision of law to the contrary, it is presumed that a buyer of goods is not liable as a
statutory employer when a lessee, sublessee, contractor, or subcontractor, or their
employee who is delivering the goods to the buyer injures himself or herself while not on
the buyer's premises. The presumption may be overcome by a showing that the lessee,
sublessee, contractor, or subcontractor, or their employee was performing a job function
that would normally be performed by an employee of the buyer of the goods being
delivered. Nothing in this subparagraph (II) creates a presumption of a statutory
employer-employee relationship when an injury occurs on the buyer's premises.
(III) For the purposes of this section, a "statutory employer" is an employer who is
responsible to pay workers' compensation benefits pursuant to subparagraph (I) of this
paragraph (a).
(a.5) The general assembly hereby finds and determines that the decision of the
Colorado court of appeals in the case of Newsom v. Frank M. Hall & Co., No. 02CA1375
(February 26, 2004), in which the court held that an independent contractor may be an
entity other than a natural person, did not accurately reflect the intent of the general
assembly when it passed Senate Bill 93-132 and Senate Bill 95-072. The general
assembly hereby declares that the term "individual", as used in this section and in section
8-40-202, means a natural person.
(b) The employer, before commencing said work, shall insure and keep insured
against all liability as provided in said articles, and such lessee, sublessee, contractor, or
subcontractor, as well as any employee thereof, shall be deemed employees as defined in
said articles. The employer shall be entitled to recover the cost of such insurance from
said lessee, sublessee, contractor, or subcontractor and may withhold and deduct the same
from the contract price or any royalties or other money due, owing, or to become due said
lessee, sublessee, contractor, or subcontractor.
(2) If said lessee, sublessee, contractor, or subcontractor is also an employer in the
doing of such work and, before commencing such work, insures and keeps insured its
liability for compensation as provided in articles 40 to 47 of this title, neither said lessee,
sublessee, contractor, or subcontractor, its employees, or its insurer shall have any right of
contribution or action of any kind, including actions under section 8-41-203, against the
person, company, or corporation operating or engaged in or conducting any business by
leasing or contracting out any part or all of the work thereof, or against its employees,
servants, or agents.
(3) Notwithstanding any provision of this section or section 8-41-402 to the
contrary, any individual who is excluded from the definition of employee pursuant to
section 8-40-202 (2), or a working general partner or sole proprietor who is not covered
under a policy of workers' compensation insurance, or a corporate officer or member of a
limited liability company who executes and files an election to reject coverage under
section 8-41-202 (1) shall not have any cause of action of any kind under articles 40 to 47
of this title. Nothing in this section shall be construed to restrict the right of any such
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individual to elect to proceed against a third party in accordance with the provisions of
section 8-41-203. The total amount of damages recoverable pursuant to any cause of
action resulting from a work-related injury brought by such individual that would
otherwise have been compensable under articles 40 to 47 of this title shall not exceed
fifteen thousand dollars, except in any cause of action brought against another not in the
same employ.
(4) (a) Notwithstanding any provision of this section to the contrary, any person,
company, or corporation who contracts with a landowner or lessee of a farm or ranch to
perform a specified farming or ranching operation shall, prior to entering into such
contract, provide for and maintain, for the period of such contract, workers' compensation
coverage pursuant to articles 40 to 47 of this title covering all the employees and laborers
to be utilized under such contract. Proof of such coverage on forms or certificates issued
by the insurer shall be provided to the person, company, or corporation contracting for the
labor prior to performing such contract.
(b) Any person, company, or corporation contracting with a landowner or lessee
of a farm or ranch to provide a specified farming or ranching operation who fails to
provide coverage pursuant to subsection (1) of this section or who fails to maintain such
coverage for the term of the contract is guilty of a misdemeanor and, upon conviction
thereof, shall be punished by imprisonment in the county jail for not more than sixty days,
or by a fine of not more than five hundred dollars, or by both such fine and imprisonment.
(c) Notwithstanding any provision of this section to the contrary, no person,
company, or corporation contracting with a landowner or lessee of a farm or ranch
operation to perform a specified farming or ranching operation nor any employee of such
person, company, or corporation required to be covered by workers' compensation
pursuant to this subsection (4) shall have any right of contribution from, or any action of
any kind, including actions under section 8-41-203, against, the person, company, or
corporation contracting to have such agricultural labor performed.
(d) (I) If any person, company, or corporation contracting to provide labor to
perform specified farming or ranching operations and required to provide workers'
compensation coverage pursuant to articles 40 to 47 of this title fails to provide such
coverage and the person, company, or corporation for whom the labor is provided incurs
any liability thereby, the person, company, or corporation providing the labor shall be
subject to a cause of action for said liability and for reasonable attorney fees.
(II) If the person, company, or corporation for whom the labor for the
performance of a specified farming or ranching operation is provided is sued by the
injured employee, said person, company, or corporation may join the person, company, or
corporation providing the labor as a third-party defendant in lieu of filing an independent
action.
(5) The provisions of this section shall not apply to licensed real estate brokers
and licensed real estate sales agents, as regulated in article 61 of title 12, C.R.S., who are
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excluded from the definition of employee pursuant to section 8-40-301 (2).
(6) Notwithstanding any provision of this section to the contrary, any person,
company, or corporation operating a commercial vehicle as defined in section 42-4-235
(1) (a), C.R.S., who holds oneself or itself out as an independent contractor only to
perform for-hire transportation, including loading and unloading, and who contracts to
perform a specific transportation job, transportation task, or transportation delivery for
another person, company, or corporation is not entering into an employee and employer
relationship for purposes of workers' compensation coverage pursuant to articles 40 to 47
of this title. Nothing in this subsection (6) shall be construed to prohibit a determination
that an individual is excluded from the definition of employee pursuant to section 8-40202 (2) if such individual is operating a commercial vehicle as defined in section 42-4235 (1) (a), C.R.S.
(7) This section shall not apply to any person excluded from the definition of
"employee" pursuant to section 8-40-301 (5) or (7).
8-41-402. Repairs to real property - exception for liability of occupant of
residential real property. (1) Every person, company, or corporation owning any real
property or improvements thereon and contracting out any work done on and to said
property to any contractor, subcontractor, or person who hires or uses employees in the
doing of such work shall be deemed to be an employer under the terms of articles 40 to 47
of this title. Every such contractor, subcontractor, or person, as well as such contractor's,
subcontractor's, and person's employees, shall be deemed to be an employee, and such
employer shall be liable as provided in said articles to pay compensation for injury or
death resulting therefrom to said contractor, subcontractor, or person and said employees
or employees' dependents and, before commencing said work, shall insure and keep
insured all liability as provided in said articles. Such employer shall be entitled to recover
the cost of such insurance from said contractor, subcontractor, or person and may
withhold and deduct the same from the contract price or any royalties or other money due,
owing, or to become due to said contractor, subcontractor, or person. Articles 40 to 47 of
this title shall not apply to the owner or occupant, or both, of residential real property
which meets the definition of a "qualified residence" under section 163 (h) (4) (A) of the
federal "Internal Revenue Code of 1986", as amended, who contracts out any work done
to the property, unless the person performing the work is otherwise an employee of the
owner or occupant, or both, of the property.
(2) If said contractor, subcontractor, or person doing or undertaking to do any
work for an owner of property, as provided in subsection (1) of this section, is also an
employer in the doing of such work and, before commencing such work, insures and
keeps insured all liability for compensation as provided in articles 40 to 47 of this title,
neither said contractor, subcontractor, or person nor any employees or insurers thereof
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shall have any right of contribution or action of any kind, including actions under section
8-41-203, against the person, company, or corporation owning real property and
improvements thereon which contracts out work done on said property, or against its
employees, servants, or agents.
(3) (Deleted by amendment, L. 91, p. 1295, § 9, effective July 1, 1991.)
8-41-403. Exemption of certain lessors of real property. (1) The provisions of
this part 4 shall not apply to any lessor or sublessor of real property who rents or leases
real property to any lessee or sublessee for the purpose of conducting the business of such
lessee or sublessee, whether as a franchise holder, independent agent, or consignee or in
any other separate capacity and whether or not such person is an employer, as defined in
section 8-40-203, but in no event where such lessee or sublessee is an employee, as
defined in section 8-40-202.
(2) No such lessee or sublessee, or any employee or insurer thereof, shall have any
right of contribution from or action against such lessor or sublessor under articles 40 to 47
of this title.
(3) The provisions of this part 4 shall not apply to any lessor or sublessor of real
property who leases or rents real property to any lessee or sublessee for the purpose of
conducting any agricultural production business of such lessee or sublessee, and no such
lessee or sublessee, or any employee or insurer thereof, shall have any right of
contribution from or action against such lessor or sublessor under articles 40 to 47 of this
title.
8-41-404. Construction work - proof of coverage required - violation - penalty
- definitions. (1) (a) Except as otherwise provided in subsection (4) of this section, every
person performing construction work on a construction site shall be covered by workers'
compensation insurance, and a person who contracts for the performance of construction
work on a construction site shall either provide, pursuant to articles 40 to 47 of this title,
workers' compensation coverage for, or require proof of workers' compensation coverage
from, every person with whom he or she has a direct contract to perform construction
work on the construction site.
(b) A site owner, general contractor, or other person who is not a direct party to a
contract for construction work shall not be held liable under subsection (3) of this section
solely as a result of the person's ownership interest or general supervisory role in a
construction project.
(c) Any person who contracts for the performance of construction work on a
construction site and who exercises due diligence by either providing workers'
compensation coverage as required by this section or requiring proof of workers'
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compensation coverage as required by this section from every person with whom he or
she has a direct contract to perform construction work on the construction site shall not be
liable under subsection (3) of this section.
(2) If the parties to a contract that includes construction work agree that part of the
contract price shall be withheld to cover workers' compensation premiums for coverage
required under this section, the premiums shall be calculated based only on that portion of
the contract price that represents the labor portion of the contract.
(3) A violation of subsection (1) of this section is punishable by an administrative
fine imposed pursuant to section 8-43-409 (1) (b). The division shall transmit revenues
collected through the imposition of fines pursuant to this section to the state treasurer,
who shall credit them to the workers' compensation cash fund created in section 8-44-112
(7). Such revenues shall be appropriated to the division for the purpose of enforcing this
section.
(4) (a) This section shall not apply to:
(I) An owner or occupant, or both, of residential real property that meets the
definition of a "qualified residence" under section 163 (h) (4) (A) of the federal "Internal
Revenue Code of 1986", as amended, who contracts out any work done to the real
property, unless the person performing the work is otherwise an employee of the owner or
occupant, or both, of the real property;
(II) An owner or occupant of real property who hires a person or persons
specifically to do routine repair and maintenance on the real property of such owner or
occupant;
(III) An independent contractor, who is a natural person, who has formed a
corporation pursuant to section 7-102-103, C.R.S., or a limited liability company pursuant
to section 7-80-203, C.R.S., and who has rejected workers' compensation coverage
pursuant to section 8-41-202;
(IV) Corporate officers and members of a limited liability company who have
rejected workers' compensation coverage pursuant to section 8-41-202;
(V) A partner in a partnership who has filed a certificate of limited partnership
pursuant to section 7-62-201, C.R.S., a partnership registration statement pursuant to
section 7-60-144 or 7-64-1002, C.R.S., or a statement of trade name pursuant to section
7-71-103, C.R.S., and has filed with the division a form, approved by the director,
rejecting workers' compensation; or
(VI) A sole proprietor who has filed a statement of trade name pursuant to section
7-71-103, C.R.S., and has filed with the division a form, approved by the director,
rejecting workers' compensation.
(b) Nothing in this section shall be construed to limit the responsibility of
corporations, limited liability companies, partnerships, or sole proprietorships to provide
coverage for their employees as required under articles 40 to 47 of this title.
(5) As used in this section:
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(a) "Construction site" means a location where a structure that is attached or will
be attached to real property is constructed, altered, or remodeled.
(b) "Construction work" includes all or any part of the construction, alteration, or
remodeling of a structure. "Construction work" does not include surveying, engineering,
examination, or inspection of a construction site or the delivery of materials to a
construction site.
(c) "Proof of workers' compensation coverage" includes a certificate or other
written confirmation, issued by the insurer or authorized agent of the insurer, of the
existence of workers' compensation coverage in force during the period of the
performance of construction work on the construction site.
PART 5
DEPENDENCY
8-41-501. Persons presumed wholly dependent. (1) For the purposes of articles
40 to 47 of this title, the following described persons shall be presumed to be wholly
dependent (however, such presumption may be rebutted by competent evidence):
(a) Widow or widower, unless it is shown that she or he was voluntarily separated
and living apart from the spouse at the time of the injury or death or was not dependent in
whole or in part on the deceased for support;
(a.5) A person who is designated in a designated beneficiary agreement for
purposes of receiving workers' compensation benefits in accordance with the provisions
of article 22 of title 15, C.R.S., unless it is shown that the designated beneficiary was
voluntarily separated and living apart from the other designated beneficiary at the time of
the injury or death or was not dependent in whole or in part on the deceased for support;
(b) Minor children of the deceased under the age of eighteen years, including
posthumous or legally adopted children;
(c) Minor children of the deceased who are eighteen years or over and under the
age of twenty-one years if it is shown that:
(I) At the time of the decedent's death they were actually dependent upon the
deceased for support; and
(II) Either at the time of the decedent's death or at the time they attained the age of
eighteen years they were engaged in courses of study as full-time students at any
accredited school. The period of presumed dependency of such persons shall continue
until they attain the age of twenty-one years or until they cease to be engaged in courses
of study as full-time students at an accredited school, whichever occurs first.
8-41-502. Other dependents - temporary dependency. Except as otherwise
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provided in section 8-41-501 (1) (c), a child eighteen years of age or over and a mother,
father, grandmother, grandfather, sister, brother, or grandchild who was wholly or
partially supported by the deceased employee at the time of death and for a reasonable
period of time immediately prior thereto is considered an actual dependent. To be entitled
to compensation, such dependents, except as provided in section 8-41-501 (1) (c), must
prove that they were incapable of or actually disabled from earning their own living. If
said incapacity or disability is temporary only, compensation shall be paid only during the
period of such temporary incapacity or disability.
8-41-503. Dependency and extent determined - how. (1) Dependents and the
extent of their dependency shall be determined as of the date of the injury to the injured
employee, and the right to death benefits shall become fixed as of said date irrespective of
any subsequent change in conditions except as provided in section 8-41-501 (1) (c). Death
benefits shall be directly payable to the dependents entitled thereto or to such person
legally entitled thereto as the director may designate.
(2) In case an employee or claimant entitled to compensation dies leaving
dependents, any accrued and unpaid portion of the compensation or benefits up to the
time of the death of such employee or claimant shall be paid to such dependents as may
be ordered by the director and not to the legal representative as such of said decedent. In
case the injured employee or claimant leaves no dependents, the director may order the
application of any accrued and unpaid benefits up to the time of the death of such
employee or claimant paid upon the expenses of the last sickness or funeral of such
decedent, the preference in such payment to be to funeral expenses.
(3) In case an injured employee or dependent of a deceased employee entitled to
benefits under articles 40 to 47 of this title is declared incompetent or insane, any benefits
accrued or to accrue may be paid to the conservator of the estate, if any, or to any
dependents, or to the party or institution having custody of the person of such injured
employee or dependent of a deceased employee as may be ordered by the director in the
director's discretion.
8-41-504. Action by injured employee - dependents not parties in interest. No
dependent of an injured employee, during the life of the employee, shall be deemed a
party in interest to any proceeding by said employee for the enforcement of any claim for
compensation nor with respect to any settlement thereof by said employee.
8-41-505. Illegitimate minor children. Illegitimate minor children of a deceased
putative father shall be entitled to compensation in the same respect as a legitimate minor
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child of said decedent when it is proved to the satisfaction of the director that the father,
during his lifetime, has acknowledged said children to be his and has regularly
contributed to their support and maintenance for a reasonable period of time prior to his
death.
ARTICLE 42
Benefits
8-42-101. Employer must furnish medical aid - approval of plan - fee
schedule - contracting for treatment - no recovery from employee - medical
treatment guidelines - accreditation of physicians - rules - repeal. (1) (a) Every
employer, regardless of said employer's method of insurance, shall furnish such medical,
surgical, dental, nursing, and hospital treatment, medical, hospital, and surgical supplies,
crutches, and apparatus as may reasonably be needed at the time of the injury or
occupational disease and thereafter during the disability to cure and relieve the employee
from the effects of the injury.
(b) In all cases where the injury results in the loss of a member or part of the
employee's body, loss of teeth, loss of vision or hearing, or damage to an existing
prosthetic device, the employer shall furnish within the limits of the medical benefits
provided in paragraph (a) of this subsection (1) artificial members, glasses, hearing aids,
braces, and other external prosthetic devices, including dentures, which are reasonably
required to replace or improve the function of each member or part of the body or
prosthetic device so affected or to improve the employee's vision or hearing. The
employee may petition the division for a replacement of any artificial member, glasses,
hearing aid, brace, or other external prosthetic device, including dentures, upon grounds
that the employee has undergone an anatomical change since the previous device was
furnished or for other good cause shown, that the anatomical change or good cause is
directly related to and caused by the injury, and that the replacement is necessary to
improve the function of each member or part of the body so affected or to relieve pain
and discomfort. Implants or devices necessary to regulate the operation of, or to replace,
with implantable devices, internal organs or structures of the body may be replaced when
the authorized treating physician deems it necessary. Every employer subject to the terms
and provisions of articles 40 to 47 of this title must insure against liability for the medical,
surgical, and hospital expenses provided for in this article, unless permission is given by
the director to such employer to operate under a medical plan, as set forth in subsection
(2) of this section.
(c) In any case in which a firefighter, emergency medical services provider, or
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peace officer, as described in section 16-2.5-101, C.R.S., is exposed during the course
and within the scope of employment to a known or possible source of hepatitis C, the
employer, or if insured, the insurer, shall, at their expense, provide for baseline testing
within the period of time specified in section 8-41-208 (1) (a) to determine whether the
employee was free of hepatitis C at the time of the on-the-job exposure. The employer, or
if insured, the insurer, shall pay for all reasonable and necessary medical procedures and
treatment for exposure to hepatitis C during the period of time set forth in section 8-41208 (1) (d).
(2) Every such plan, which is agreed to between the employer and employee, for
the furnishing of medical, surgical, and hospital treatment, whether or not the employee is
to pay any part of the expense of such treatment, before being put into effect, shall receive
the approval of the director. The director has full power to formulate the terms and
conditions under which any such plan may operate and the essentials thereof, and at any
time the director may order modifications or changes in any such plan or withdraw prior
approval thereof. No plan shall be approved by the director which relieves the employer
from the burden of assuming and paying for any part of the medical, surgical, and hospital
services and supplies required.
(3) (a) (I) The director shall establish a schedule fixing the fees for which all
surgical, hospital, dental, nursing, vocational rehabilitation, and medical services, whether
related to treatment or not, pertaining to injured employees under this section shall be
compensated. It is unlawful, void, and unenforceable as a debt for any physician,
chiropractor, hospital, person, expert witness, reviewer, evaluator, or institution to
contract with, bill, or charge any party for services, rendered in connection with injuries
coming within the purview of this article or an applicable fee schedule, which are or may
be in excess of said fee schedule unless such charges are approved by the director. Fee
schedules shall be reviewed on or before July 1 of each year by the director, and
appropriate health care practitioners shall be given a reasonable opportunity to be heard as
required pursuant to section 24-4-103, C.R.S., prior to fixing the fees, impairment rating
guidelines, which shall be based on the revised third edition of the "American Medical
Association Guides to the Evaluation of Permanent Impairment", in effect as of July 1,
1991, and medical treatment guidelines and utilization standards. Fee schedules
established pursuant to this subparagraph (I) shall take effect on January 1. The director
shall promulgate rules concerning reporting requirements, penalties for failure to report
correctly or in a timely manner, utilization control requirements for services provided
under this section, and the accreditation process in subsection (3.6) of this section. The
fee schedule shall apply to all surgical, hospital, dental, nursing, vocational rehabilitation,
and medical services and to 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.
(II) Notwithstanding the provisions of subparagraph (I) of this paragraph (a) the
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fees set forth in the schedule established pursuant to subparagraph (I) of this paragraph
(a) shall be those fees in effect immediately prior to July 1, 1991, and such fees shall
remain in effect until July 1, 1995.
(III) Notwithstanding the provisions of subparagraph (I) of this paragraph (a),
until the impairment rating guidelines and medical treatment guidelines and utilization
standards required by subparagraph (I) of this paragraph (a) and subsection (3.5) of this
section are adopted and level I accreditation is received, compensation for fees for
chiropractic treatments shall not be made more than ninety days after the first of such
treatments nor after the twelfth such treatment, whichever first occurs, unless the
chiropractor has received level I accreditation.
(b) Medical treatment guidelines and utilization standards, developed by the
director, shall be used by health care practitioners for compliance with this section.
(3.5) (a) (I) "Physician" means, for the purposes of the level I and level II
accreditation programs, a physician licensed under the "Colorado Medical Practice Act".
For the purposes of level I accreditation only and not level II accreditation, "physician"
means a dentist licensed under the "Dental Practice Law of Colorado", a podiatrist
licensed under the provisions of article 32 of title 12, C.R.S., and a chiropractor licensed
under the provisions of article 33 of title 12, C.R.S. No physician shall be deemed to be
accredited under either level I or level II solely by reason of being licensed.
(II) The director shall promulgate rules establishing a system for the determination
of medical treatment guidelines and utilization standards and medical impairment rating
guidelines for impairment ratings as a percent of the whole person or affected body part
based on the revised third edition of the "American Medical Association Guides to the
Evaluation of Permanent Impairment", in effect as of July 1, 1991.
(b) A medical impairment rating system shall be maintained by the director.
(c) (I) This subsection (3.5) is repealed, effective July 1, 2014.
(II) Prior to such repeal the accreditation process created by this subsection (3.5)
and subsection (3.6) of this section shall be reviewed as provided for in section 24-34104, C.R.S.
(3.6) The two-tier accreditation system shall comprise the following programs:
(a) (I) A program establishing the accreditation requirements for physicians
providing primary care to patients who have, as a result of their injury, been unable to
return to work for more than three working days, referred to in this section as "time-loss
injuries", which program shall be voluntary except in the case of chiropractors, for whom
it shall be mandatory, and which shall be known as level I accreditation; and
(II) A program establishing the accreditation requirements for physicians
providing impairment evaluation of injured workers, which program shall be known as
level II accreditation.
(b) A physician who provides impairment evaluation of injured workers shall
complete and must have received accreditation under the level II accreditation program.
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However, the authorized treating physician providing primary care need not be level II
accredited to determine that no permanent medical impairment has resulted from the
injury. Specialists who do not render primary care to injured workers and who do not
perform impairment evaluations do not require accreditation. The facility where a
physician provides such services cannot be accredited.
(c) Both the level I and level II accreditation programs shall be implemented and
available to physicians. All physicians who are required to be accredited shall complete
the level II accreditation program or programs.
(d) The level I and level II accreditation programs shall operate in such a manner
that the costs thereof shall be fully met by registration fees paid by the physicians. The
registration fee for level I accreditation shall not exceed two hundred fifty dollars, and the
registration fee for level II accreditation shall not exceed four hundred dollars. The
registration fee for each program shall cover the cost of all accreditation course work and
materials.
(e) The accreditation system shall be established so as to provide physicians with
an understanding of the administrative, legal, and medical roles and in such a manner that
accreditation is accessible to every licensed physician, with consideration of specialty and
geographic diversity.
(f) Initial accreditation shall be for a three-year period and may be renewed for
successive three-year periods. The director by regulation may determine any additional
training program required prior to accreditation renewal.
(g) The director shall, upon good cause shown, revoke the accreditation of any
physician who violates the provisions of this subsection (3.6) or any rule promulgated by
the director pursuant to this subsection (3.6), following a hearing on the merits before an
administrative law judge, subject to review by the industrial claim appeals office and the
court of appeals, in accordance with all applicable provisions of article 43 of this title.
(h) If a physician whose accreditation has been revoked submits a claim for
payment for services rendered subsequent to such revocation, the physician shall be
considered in violation of section 10-1-128, C.R.S., and neither an insurance carrier nor a
self-insured employer shall be under any obligation to pay such claim.
(i) A physician who provides treatment for nontime loss injuries need not be
accredited to be reimbursed for the costs of such treatment pursuant to the provisions of
the "Workers' Compensation Act of Colorado".
(j) (Deleted by amendment, L. 96, p. 151, § 2, effective July 1, 1996.)
(k) The division shall make available to insurers, claimants, and employers a list
of all accredited physicians and a list of all physicians whose accreditation has been
revoked. Such lists shall be updated on a monthly basis.
(l) The registration fees collected pursuant to paragraph (d) of this subsection
(3.6) shall be transmitted to the state treasurer, who shall credit the same to the physicians
accreditation program cash fund, which is hereby created in the state treasury. Moneys in
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the physicians accreditation program cash fund are hereby continuously appropriated for
the payment of the direct costs of providing the level I and level II accreditation courses
and materials.
(m) All administrative costs associated with the level I and level II accreditation
programs shall be paid out of the workers' compensation cash fund in accordance with
appropriations made pursuant to section 8-44-112 (7).
(n) The director shall contract with the medical school of the university of
Colorado for the services of a medical director to advise the director on issues of
accreditation, impairment rating guidelines, medical treatment guidelines and utilization
standards, and case management and to consult with the director on peer review activities
as specified in this subsection (3.6) and section 8-43-501. Such medical director shall be a
medical doctor licensed to practice in this state with experience in occupational medicine.
The director may contract with an appropriate private organization which meets the
definition of a utilization and quality control peer review organization as set forth in 42
U.S.C. sec. 1320c-1 (1) (A) or (1) (B), to conduct peer review activities under this
subsection (3.6) and section 8-43-501 and to recommend whether or not adverse action is
warranted.
(o) Except as provided in this subsection (3.6), neither an insurance carrier nor a
self-insured employer or injured worker shall be liable for costs incurred for an
impairment evaluation rendered by a physician where there is a determination of
permanent medical impairment if such physician is not level II accredited pursuant to the
provisions of this subsection (3.6).
(p) (I) For purposes of this paragraph (p):
(A) "Case management" means a system developed by the insurance carrier in
which the carrier shall assign a person knowledgeable in workers' compensation health
care to communicate with the employer, employee, and treating physician to assure that
appropriate and timely medical care is being provided.
(B) "Managed care" means the provision of medical services through a recognized
organization authorized under the provisions of parts 1, 3, and 4 of article 16 of title 10,
C.R.S., or a network of medical providers accredited to practice workers' compensation
under this subsection (3.6).
(II) Every employer or its insurance carrier shall offer at least managed care or
medical case management in the counties of Denver, Adams, Jefferson, Arapahoe,
Douglas, Boulder, Larimer, Weld, El Paso, Pueblo, and Mesa and shall offer medical case
management in all other counties of the state.
(q) The division is authorized to accept moneys from any governmental unit as
well as grants, gifts, and donations from individuals, private organizations, and
foundations; except that no grant, gift, or donation may be accepted by the division if it is
subject to conditions which are inconsistent with this article or any other laws of this state
or which require expenditures from the workers' compensation cash fund which have not
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been approved by the general assembly. All moneys accepted by the division shall be
transmitted to the state treasurer for credit to the workers' compensation cash fund.
(r) (I) This subsection (3.6) is repealed, effective July 1, 2014.
(II) Prior to such repeal the accreditation process created by subsection (3.5) of
this section and this subsection (3.6) shall be reviewed as provided for in section 24-34104, C.R.S.
(3.7) On and after July 1, 1991, all physical impairment ratings used under articles
40 to 47 of this title shall be based on the revised third edition of the "American Medical
Association Guides to the Evaluation of Permanent Impairment", in effect as of July 1,
1991. For purposes of determining levels of medical impairment pursuant to articles 40 to
47 of this title a physician shall not render a medical impairment rating based on chronic
pain without anatomic or physiologic correlation. Anatomic correlation must be based on
objective findings.
(4) Once there has been an admission of liability or the entry of a final order
finding that an employer or insurance carrier is liable for the payment of an employee's
medical costs or fees, a medical provider shall under no circumstances seek to recover
such costs or fees from the employee.
(5) If any party files an application for hearing on whether the claimant is entitled
to medical maintenance benefits recommended by an authorized treating physician that
are unpaid and contested, and any requested medical maintenance benefit is admitted
fewer than twenty days before the hearing or ordered after application for hearing is filed,
the court shall award the claimant all reasonable costs incurred in pursuing the medical
benefit. Such costs do not include attorney fees.
(6) (a) If an employer receives notice of injury and the employer or, if insured, the
employer's insurance carrier, after notice of the injury, fails to furnish reasonable and
necessary medical treatment to the injured worker for a claim that is admitted or found to
be compensable, the employer or carrier shall reimburse the claimant, or any insurer or
governmental program that pays for related medical treatment, for the costs of reasonable
and necessary treatment that was provided. An employer, insurer, carrier, or provider may
not recover the cost of care from a claimant where the employer or carrier has furnished
medical treatment except in the case of fraud.
(b) If a claimant has paid for medical treatment that is admitted or found to be
compensable and that costs more than the amount specified in the workers' compensation
fee schedule, the employer or, if insured, the employer's insurance carrier, shall reimburse
the claimant for the full amount paid. The employer or carrier is entitled to reimbursement
from the medical providers for the amount in excess of the amount specified in the
worker's compensation fee schedule.
8-42-102. Basis of compensation - "wages" defined - average weekly wage Colorado Revised Statutes 2013
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"at the time of injury" clarified. (1) The average weekly wage of an injured employee
shall be taken as the basis upon which to compute compensation payments.
(2) Average weekly wages for the purpose of computing benefits provided in
articles 40 to 47 of this title, except as provided in this section, shall be calculated upon
the monthly, weekly, daily, hourly, or other remuneration which the injured or deceased
employee was receiving at the time of the injury, and in the following manner; except that
any portion of such remuneration representing a per diem payment shall be excluded from
the calculation unless such payment is considered wages for federal income tax purposes:
(a) Where the employee is being paid by the month for services under a contract
of hire, the weekly wage shall be determined by multiplying the monthly wage or salary at
the time of the accident by twelve and dividing by fifty-two.
(b) Where the employee is being paid by the week for services under a contract of
hire, said weekly remuneration at the time of the injury shall be deemed to be the weekly
wage for the purposes of articles 40 to 47 of this title.
(c) Where the employee is rendering service on a per diem basis, the weekly wage
shall be determined by multiplying the daily wage by the number of days and fractions of
days in the week during which the employee under a contract of hire was working at the
time of the injury or would have worked if the injury had not intervened.
(d) Where the employee is being paid by the hour, the weekly wage shall be
determined by multiplying the hourly rate by the number of hours in a day during which
the employee was working at the time of the injury or would have worked if the injury
had not intervened, to determine the daily wage; then the weekly wage shall be
determined from said daily wage in the manner set forth in paragraph (c) of this
subsection (2).
(e) Where the employee is paid on a piecework, tonnage, commission, or basis
other than a monthly, weekly, daily, or hourly wage and where the employment is but
casual and in the usual course of the trade, business, profession, or occupation of his
employer, the total amount earned by the injured or killed employee in the twelve months
preceding the injury shall be computed, which sum shall be divided by the number of pay
periods the injured person was employed during the twelve months immediately
preceding the injury, and the result thus ascertained shall be considered the average wage
of said employee per pay period.
(f) Where the employee is being paid by the mile, the weekly wage shall be
determined by multiplying the rate per mile by the average number of miles per day the
employee drove in the service of the employer in the sixty working days immediately
preceding the date of the injury, to arrive at a daily wage; then the weekly wage shall be
determined from the said daily wage in the manner set forth in paragraph (c) of this
subsection (2). If, on the date of the injury, the employee has worked for the employer
less than sixty days, the average daily wage shall be based on the average miles driven per
working day during such period.
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(3) Where the foregoing methods of computing the average weekly wage of the
employee, by reason of the nature of the employment or the fact that the injured employee
has not worked a sufficient length of time to enable earnings to be fairly computed
thereunder or has been ill or has been self-employed or for any other reason, will not
fairly compute the average weekly wage, the division, in each particular case, may
compute the average weekly wage of said employee in such other manner and by such
other method as will, in the opinion of the director based upon the facts presented, fairly
determine such employee's average weekly wage.
(4) Where an employee is a minor and the disability is temporary, the average
weekly wage of such minor shall be determined by the division as in cases of disability of
adults. Where the disability of such minor is permanent or if benefits under articles 40 to
47 of this title accrue because of the death of such minor, compensation to said minor or
death benefits to said minor's dependents shall be paid at the maximum rate of
compensation payable under said articles at the time of the determination of such
permanency or of such death.
(5) (a) The general assembly hereby finds that the phrase "at the time of injury" in
subsection (2) of this section refers to the date of the employee's accident. When
subsection (2) of this section is used to determine a worker's average weekly wage, the
wage on the date of the accident shall be used.
(b) Nothing in this subsection (5) alters the discretion of the division or the
director to fairly determine a worker's average weekly wage in accordance with
subsection (3) of this section.
8-42-103. Disability indemnity payable as wages - period of disability. (1) If
the injury or occupational disease causes disability, a disability indemnity shall be payable
as wages pursuant to section 8-42-105 (2) (a) subject to the following limitations:
(a) If the period of disability does not last longer than three days from the day the
employee leaves work as a result of the injury, no disability indemnity shall be
recoverable except the disbursement provided in articles 40 to 47 of this title for medical,
surgical, nursing, and hospital services, apparatus, and supplies, nor in any case unless the
division has actual knowledge of the injury or is notified thereof within the period
specified in said articles.
(b) If the period of disability lasts longer than two weeks from the day the injured
employee leaves work as the result of the injury, disability indemnity shall be recoverable
from the day the injured employee leaves work.
(c) (I) In cases where it is determined that periodic disability benefits granted by
the federal "Old-Age, Survivors, and Disability Insurance Amendments of 1965", Pub.L.
89-97, are payable to an individual and the individual's dependents, the aggregate benefits
payable for temporary total disability, temporary partial disability, and permanent total
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disability pursuant to this section shall be reduced, but not below zero, by an amount
equal as nearly as practical to one-half the federal periodic benefits; but, if the federal
"Old-Age, Survivors, and Disability Insurance Amendments of 1965", Pub.L. 89-97, is
amended to provide for a reduction of an individual's disability benefits thereunder
because of compensation benefits payable under articles 40 to 47 of this title, the
reduction of compensation benefits provided in said articles shall be decreased by an
amount equal to the federal reduction. Upon request of the insurer or employer, the
employee shall apply for such federal periodic disability benefits and respond to requests
from the insurer or employer as to the status of such application. Failure to comply with
this section constitutes cause for suspension of benefits.
(II) In cases where it is determined that periodic benefits granted by the federal
old-age, survivors, and disability insurance act or employer-paid retirement benefits are
payable to an individual and the individual's dependents, the aggregate benefits payable
for permanent total disability pursuant to this section shall be reduced, but not below zero:
(A) By an amount equal as nearly as practical to one-half such federal benefits;
except that this reduction for the periodic benefits granted by the federal old-age,
survivors, and disability insurance act shall not exceed the reduction specified in
subparagraph (I) of this paragraph (c) for the periodic disability benefits payable to an
individual;
(B) By an amount determined as a percentage of the employer-paid retirement
benefits, said percentage to be determined by a weighted average of the employer's
contributions during the period of covered employment divided by the total contributions
during the period of covered employment; except that in permanent total disability cases
all contributions made by the employer pursuant to a collective bargaining agreement
with the employee's representative shall be considered to have been made by the
employee.
(II.5) In cases where an employer does not participate in federal old-age,
survivors, and disability insurance, and it is determined that employer-paid retirement
benefits are payable to an individual and the individual's dependents, the aggregate
benefits payable for permanent total disability pursuant to this section shall be reduced,
but not below zero by an amount determined as a percentage of the employer-paid
retirement benefits, said percentage to be determined by a weighted average of the
employer's contributions during the period of covered employment divided by the total
contributions during the period of covered employment.
(III) Notwithstanding sub-subparagraph (A) of subparagraph (II) of this paragraph
(c), if the federal "Old-Age, Survivors, and Disability Insurance Amendments of 1965",
Pub.L. 89-97, is amended to provide for a reduction of an individual's periodic benefits
thereunder because of compensation benefits payable under articles 40 to 47 of this title,
the reduction of compensation benefits provided in said articles shall be decreased by an
amount equal to the federal reduction.
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(IV) The provisions of subparagraphs (II) and (III) of this paragraph (c) shall
apply only if the injury on which the award for permanent total disability was based
occurred after the claimant reached forty-five years of age.
(d) (I) In cases where it is determined that periodic disability benefits are payable
to an employee under a pension or disability plan financed in whole or in part by the
employer, hereinafter called "employer pension or disability plan", the aggregate benefits
payable for temporary total disability, temporary partial disability, and permanent total
disability pursuant to this section shall be reduced, but not below zero, by an amount
equal as nearly as practical to the employer pension or disability plan benefits, with the
following limitations:
(A) Where the employee has contributed to the employer pension or disability
plan, benefits shall be reduced under this section only in an amount proportional to the
employer's percentage of total contributions to the employer pension or disability plan.
(B) Where the employer pension or disability plan provides by its terms that
benefits are precluded thereunder in whole or in part if benefits are awarded under articles
40 to 47 of this title, the reduction provided in this paragraph (d) shall not be applicable to
the extent of the amount so precluded.
(II) Upon request of the insurer or employer, the employee shall apply for such
periodic disability benefits and respond to requests from the insurer or employer as to the
status of such application. Failure to comply with this section shall be cause for
suspension of benefits.
(III) The provisions of this paragraph (d) shall apply to a disability pension paid
pursuant to article 30.5 or 31 of title 31, C.R.S.; except that said reduction shall not
reduce the combined weekly disability benefits below a sum equal to one hundred percent
of the state average weekly wage as defined in section 8-47-106 and applicable to the year
in which the weekly disability benefits are being paid.
(IV) If the disability benefits awarded pursuant to articles 40 to 47 of this title are
paid in a lump sum pursuant to section 8-43-406, the weekly benefit attributed to such
workers' compensation benefits, for the purpose of calculating the combined weekly
disability benefit specified in subparagraph (III) of this paragraph (d), shall be calculated
by assuming that the employee is receiving the weekly disability benefits payments such
employee would have received had such weekly disability payments not been reduced and
paid as a lump sum.
(e) In cases where it is determined that periodic disability benefits are payable to
an individual and said individual's dependents pursuant to a workers' compensation act of
another state or of the federal government, the aggregate benefits payable for temporary
total disability, temporary partial disability, permanent partial disability, and permanent
total disability pursuant to this section shall be reduced, but not below zero, by an amount
equal to the benefits payable pursuant to such other workers' compensation act.
(f) In cases where it is determined that unemployment compensation benefits are
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payable to an employee, the aggregate benefits payable for permanent total disability
pursuant to this section shall be reduced, but not below zero, by an amount equal as nearly
as practical to such unemployment compensation benefits. In cases where it is determined
that unemployment insurance benefits are payable to an employee, compensation for
temporary disability shall be reduced, but not below zero, by the amount of
unemployment insurance benefits received, unless the unemployment insurance amount
has already been reduced by the temporary disability benefit amount and except that
temporary total disability shall not be reduced by unemployment insurance benefits
received pursuant to section 8-73-112.
(g) In cases where it is determined that a temporarily disabled employee is
responsible for termination of employment, the resulting wage loss shall not be
attributable to the on-the-job injury.
(2) Within fifteen days after receipt of written notice by the employer or, if
insured, the employer's workers' compensation insurance carrier or third-party
administrator of the termination of a fringe benefit or advantage enumerated in section 840-201 (19) (b), and the effective date of the termination and cost of conversion, the
employer or, if insured, the employer's workers' compensation insurance carrier or thirdparty administrator shall recalculate the applicable average weekly wage and begin
payment of benefits in accordance with the recalculation with interest beginning on the
date the benefit was terminated.
8-42-104. Effect of previous injury or compensation. (1) The fact that an
employee has suffered a previous disability or impairment or received compensation
therefor shall not preclude compensation for a later injury or for death, but, in
determining compensation benefits payable for the later injury or death, the employee's
average weekly earnings at the time of the later injury shall be used in determining the
compensation payable to the employee or such employee's dependents. Notwithstanding
any other provision of articles 40 to 47 of this title, no claimant may receive concurrent
permanent total disability awards from injuries occurring in this state or any other state.
(2) (Deleted by amendment, L. 2008, p. 1676, § 2, effective July 1, 2008.)
(3) An employee's temporary total disability, temporary partial disability, or
medical benefits shall not be reduced based on a previous injury.
(4) An employee's recovery of permanent total disability shall not be reduced
when the disability is the result of work-related injury or work-related injury combined
with genetic, congenital, or similar conditions; except that this subsection (4) shall not
apply to reductions in recovery or apportionments allowed pursuant to the Colorado
supreme court's decision in the case denominated Anderson v. Brinkhoff, 859 P.2d 819
(Colo. 1993).
(5) In cases of permanent medical impairment, the employee's award or settlement
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shall be reduced:
(a) When an employee has suffered more than one permanent medical impairment
to the same body part and has received an award or settlement under the "Workers'
Compensation Act of Colorado" or a similar act from another state. The permanent
medical impairment rating applicable to the previous injury to the same body part,
established by award or settlement, shall be deducted from the permanent medical
impairment rating for the subsequent injury to the same body part.
(b) When an employee has a nonwork-related previous permanent medical
impairment to the same body part that has been identified, treated, and, at the time of the
subsequent compensable injury, is independently disabling. The percentage of the
nonwork-related permanent medical impairment existing at the time of the subsequent
injury to the same body part shall be deducted from the permanent medical impairment
rating for the subsequent compensable injury.
(6) Nothing in this section shall be construed to preclude employers or insurers
from seeking contribution or reimbursement, as permitted by law, from other employers
or insurers for benefits paid to or for an injured employee as long as the employee's
benefits are not reduced or otherwise affected by such contribution or reimbursement.
8-42-105. Temporary total disability. (1) In case of temporary total disability of
more than three regular working days' duration, the employee shall receive sixty-six and
two-thirds percent of said employee's average weekly wages so long as such disability is
total, not to exceed a maximum of ninety-one percent of the state average weekly wage
per week. Except where vocational rehabilitation is offered and accepted as provided in
section 8-42-111 (3), temporary total disability payments shall cease upon the occurrence
of any of the events enumerated in subsection (3) of this section. If vocational
rehabilitation is offered and accepted, any party may at any time terminate vocational
rehabilitation upon fourteen days' written notice to the other parties and the director. For
purposes of this section, termination of vocational rehabilitation shall be the same as if
vocational rehabilitation had never been offered and accepted, and the employer or
insurance carrier shall not be entitled to recover any temporary total disability benefits
paid during the period that vocational rehabilitation was provided.
(2) (a) The first installment of compensation shall be paid no later than the date
that liability for the claim is admitted by the insurance carrier or self-insured employer. If
the insurance carrier or self-insured employer denies liability for the claim, the claimant
may request an expedited hearing on the issue of compensability if the application is filed
within forty-five days after the date of mailing of the notice of contest. The director shall
set any such expedited matter for hearing within forty days after the date of the
application, when the issue is liability for the disease or injury. The time schedule for
such an expedited hearing is subject to the extensions set forth in section 8-43-209. If a
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claimant elects not to request an expedited hearing pursuant to this paragraph (a), the time
schedule for hearing the matter shall be as set forth in section 8-43-209. Compensation
shall be paid at least once every two weeks, except where the director determines that
payment in installments should be made at some other interval. The director may by rule
convert monthly benefit schedules to weekly or other periodic schedules.
(b) Temporary disability compensation is not due and payable for any period of
time for which the insurer or self-insured employer has requested from the employee's
attending physician verification of the employee's inability to work resulting from the
claimed injury or disease and the physician cannot verify the employee's inability to work,
unless the employee has been unable to receive treatment for reasons beyond the
employee's control. Failure of the physician to submit such verification, through no fault
of the employee, shall not affect the payment of temporary disability compensation under
this section.
(c) If an employee fails to appear at an appointment with the employee's attending
physician, the insurer or self-insured employer shall notify the employee by certified mail
that temporary disability benefits may be suspended after the employee fails to appear at a
rescheduled appointment. If the employee fails to appear at a rescheduled appointment,
the insurer or self-insured employer may, without a prior hearing, suspend payment of
temporary disability benefits to the employee until the employee appears at a subsequent
rescheduled appointment.
(d) If the insurer or self-insured employer has requested and failed to receive from
the employee's attending physician verification of the employee's inability to work
resulting from the claimed injury or disease, medical services provided by the attending
physician are not compensable until the attending physician submits such verification.
(3) Temporary total disability benefits shall continue until the first occurrence of
any one of the following:
(a) The employee reaches maximum medical improvement;
(b) The employee returns to regular or modified employment;
(c) The attending physician gives the employee a written release to return to
regular employment; or
(d) (I) The attending physician gives the employee a written release to return to
modified employment, such employment is offered to the employee in writing, and the
employee fails to begin such employment.
(II) In the case of employment by a temporary help contracting firm, once the
employee has received one written offer of modified employment meeting the
requirements of subparagraph (III) of this paragraph (d), the employee shall be deemed to
be on notice that modified employment is available. Subsequent offers of modified
employment need not be in writing so long as the job requirements of such modified
employment are within the restrictions given the employee by the employee's attending
physician and the employee is allowed a period of at least twenty-four hours, not
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including any part of a Saturday, Sunday, or legal holiday, within which to respond to any
such offer.
(III) A written offer of modified employment under subparagraph (II) of this
paragraph (d) shall clearly state:
(A) That future offers of employment need not be in writing;
(B) The policy of the temporary help contracting firm regarding how and when
employees are expected to learn of such future offers; and
(C) That benefits under this section will be terminated if an employee fails to
respond to an offer of modified employment.
(4) (a) In cases where it is determined that a temporarily disabled employee is
responsible for termination of employment, the resulting wage loss shall not be
attributable to the on-the-job injury.
(b) The claimant's refusal to accept an offer of modified employment under either
of the following conditions does not constitute responsibility for termination:
(I) The offer of modified employment would require the claimant to travel a
distance of greater than fifty miles one way more than the claimant's preinjury commute;
or
(II) An administrative law judge determines that the claimant's rejection of the
offer of modified employment was reasonable considering the totality of the claimant's
circumstances, including accounting for:
(A) The consequences of the industrial injury;
(B) The financial hardship that would be imposed on the claimant in order to
accept the offer of modified employment; or
(C) Any other reasons that would, in the opinion of the administrative law judge,
make it impracticable for the claimant to accept the offer of modified employment.
(c) The circumstances described in paragraph (b) of this subsection (4) are not
exhaustive.
8-42-106. Temporary partial disability. (1) In case of temporary partial
disability, the employee shall receive sixty-six and two-thirds percent of the difference
between the employee's average weekly wage at the time of the injury and the employee's
average weekly wage during the continuance of the temporary partial disability, not to
exceed a maximum of ninety-one percent of the state average weekly wage per week.
Temporary partial disability shall be paid at least once every two weeks.
(2) Temporary partial disability payments shall continue until the first occurrence
of either one of the following:
(a) The employee reaches maximum medical improvement; or
(b) (I) The attending physician gives the employee a written release to return to
modified employment, such employment is offered to the employee in writing, and the
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employee fails to begin such employment.
(II) In the case of employment by a temporary help contracting firm, once the
employee has received one written offer of modified employment meeting the
requirements of subparagraph (III) of this paragraph (b), the employee shall be deemed to
be on notice that modified employment is available. Subsequent offers of modified
employment need not be in writing so long as the job requirements of such modified
employment are within the restrictions given the employee by the employee's attending
physician and the employee is allowed a period of at least twenty-four hours, not
including any part of a Saturday, Sunday, or legal holiday, within which to respond to any
such offer.
(III) A written offer of modified employment under subparagraph (II) of this
paragraph (b) shall clearly state:
(A) That future offers of employment need not be in writing;
(B) The policy of the temporary help contracting firm regarding how and when
employees are expected to learn of such future offers; and
(C) That benefits under this section will be terminated if an employee fails to
respond to an offer of modified employment.
8-42-107.
Permanent partial disability benefits - schedule - medical
impairment benefits - how determined. (1) Benefits available. (a) When an injury
results in permanent medical impairment, and the employee has an injury or injuries
enumerated in the schedule set forth in subsection (2) of this section, the employee shall
be limited to medical impairment benefits as specified in subsection (2) of this section.
(b) When an injury results in permanent medical impairment and the employee has
an injury or injuries not on the schedule specified in subsection (2) of this section, the
employee shall be limited to medical impairment benefits as specified in subsection (8) of
this section.
(2) Scheduled injuries. In case an injury results in a loss set forth in the following
schedule, the injured employee, in addition to compensation to be paid for temporary
disability, shall receive compensation for the period as specified:
(a) The loss of an arm at the shoulder
208 weeks
(a.5) The loss of an arm above the hand including the wrist
208 weeks
(b) (Deleted by amendment, L. 94, p. 2002, § 4, effective July 1, 1994.)
(c) The loss of a hand below the wrist
104 weeks
(d) The loss of a thumb and the metacarpal bone thereof
50 weeks
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(e) The loss of a thumb at the proximal joint
35 weeks
(f) The loss of a thumb at the second or distal joint
18 weeks
(g) The loss of an index finger and the metacarpal bone thereof
26 weeks
(h) The loss of an index finger at the proximal joint
18 weeks
(i) Loss of an index finger at the second joint
13 weeks
(j) Loss of an index finger at the distal joint
9 weeks
(k) Loss of a second finger and the metacarpal bone thereof
18 weeks
(l) Loss of a middle finger at the proximal joint
13 weeks
(m) Loss of a middle finger at the second joint
9 weeks
(n) Loss of a middle finger at the distal joint
5 weeks
(o) Loss of a third or ring finger and the metacarpal bone thereof
11 weeks
(p) Loss of a ring finger at the proximal joint
7 weeks
(q) Loss of a ring finger at the second joint
7 weeks
(r) Loss of a ring finger at the distal joint
4 weeks
(s) Loss of a little finger and the metacarpal bone thereof
13 weeks
(t) Loss of a little finger at the proximal joint
9 weeks
(u) Loss of a little finger at the second joint
9 weeks
(v) Loss of a little finger at the distal joint
4 weeks
(w) Loss of a leg at the hip joint or so near thereto as to preclude
the use of an artificial limb
208 weeks
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(w.5) The loss of a leg above the foot including the ankle
208 weeks
(x) (Deleted by amendment, L. 94, p. 2002, § 4, effective July 1, 1994.)
(y) The loss of a foot below the ankle
104 weeks
(z) The loss of a great toe with the metatarsal bone thereof
26 weeks
(aa) The loss of a great toe at the proximal joint
18 weeks
(bb) The loss of a great toe at the second or distal joint
9 weeks
(cc) The loss of any other toe with the metatarsal bone thereof
11 weeks
(dd) The loss of any other toe at the proximal joint
4 weeks
(ee) The loss of any other toe at the second or distal joint
4 weeks
(ff) The loss of a tooth
6 weeks
(gg) Total blindness of one eye
104 weeks
(hh) Total deafness of both ears
139 weeks
(ii) Total deafness of one ear
35 weeks
(jj) Where worker prior to injury has suffered a total loss of
hearing in one ear, and as a result of the accident loses
total hearing in remaining ear
139 weeks
(3) Temporary disability terminates as to injuries coming under any provision of
this section upon the occurrence of any of the events enumerated in section 8-42-105 (3).
(4) For the purpose of this schedule, permanent and complete paralysis of any
member as the proximate result of accidental injury shall be deemed equivalent to the loss
thereof.
(5) If amputation is made between any two joints mentioned in this schedule,
except amputation between the knee and the hip joint, the resulting loss shall be estimated
as if the amputation had been made at the joint nearest thereto. If any portion of the bone
of the distal joint of any finger, thumb, or toe is amputated, the amount paid therefor shall
be the amount allowed for amputation at said distal joint.
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(6) (a) The amounts specified in subsections (1) to (5) of this section shall be at
the compensation rate of one hundred seventy-six dollars per week.
(b) On July 1, 2000, and on each succeeding July 1 thereafter, the compensation
rate established in this subsection (6) shall be modified for claims arising on and after
such date by the same percentage increase or decrease as the state average weekly wage
as determined by the director when the director establishes the state average weekly wage
pursuant to section 8-47-106.
(7) (a) When an injured employee sustains two or more injuries coming under this
schedule, the disabilities specified in subsections (1) to (5) of this section shall be added,
and the injured employee shall receive the sum total thereof; except that, where the injury
results in the loss or partial loss of use of the index finger and thumb of the same hand or
of more than two digits of any one hand or foot, the disability, in the discretion of the
director, may be compensated on the basis of the partial loss of use of said hand or foot,
measured respectively from the wrist or ankle.
(b) (I) The general assembly finds, determines, and declares that the rating
organization that studied the impact of the changes in Senate Bill 91-218, enacted at the
first regular session of the fifty-eighth general assembly, assumed that scheduled injuries
would remain on the schedule and nonscheduled injuries would be compensated as
medical impairment benefits. Therefore, the general assembly finds, determines, and
declares that the purpose of changing the provisions of subparagraph (II) of this
paragraph (b), as amended by House Bill 99-1157, enacted at the first regular session of
the sixty-second general assembly, is to clarify that scheduled injuries shall be
compensated as provided on the schedule and nonscheduled injuries shall be compensated
as medical impairment benefits, and that, when an injured worker sustains both scheduled
and nonscheduled injuries, the losses shall be compensated on the schedule for scheduled
injuries and the nonscheduled injuries shall be compensated as medical impairment
benefits. The general assembly further determines and declares that mental or emotional
stress shall be compensated pursuant to section 8-41-301 (2) and shall not be combined
with a scheduled or a nonscheduled injury.
(II) Except as provided in subsection (8) of this section, where an injury causes
the loss of, loss of use of, or partial loss of use of any member specified in the foregoing
schedule, the amount of permanent partial disability shall be the proportionate share of
the amount stated in the above schedule for the total loss of a member, and such amount
shall be in addition to compensation for temporary disability. Where an injury causes a
loss set forth in the schedule in subsection (2) of this section and a loss set forth for
medical impairment benefits in subsection (8) of this section, the loss set forth in the
schedule found in said subsection (2) shall be compensated solely on the basis of such
schedule and the loss set forth in said subsection (8) shall be compensated solely on the
basis for such medical impairment benefits specified in said subsection (8).
(III) Mental or emotional stress shall be compensated pursuant to section 8-41-301
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(2) and shall not be combined with a scheduled or a nonscheduled injury, except for the
purposes of calculating a claimant's impairment rating to determine the applicable cap for
benefits pursuant to section 8-42-107.5.
(8) Medical impairment benefits - determination of MMI for scheduled and
nonscheduled injuries. (a) When an injury results in permanent medical impairment not
set forth in the schedule in subsection (2) of this section, the employee shall be limited to
medical impairment benefits calculated as provided in this subsection (8). The
procedures for determination of maximum medical improvement set forth in paragraph
(b) of this subsection (8) shall be available in cases of injuries set forth in the schedule in
subsection (2) of this section and also in cases of injuries that are not set forth in said
schedule.
(b) (I) An authorized treating physician shall make a determination as to when the
injured employee reaches maximum medical improvement as defined in section 8-40-201
(11.5).
(II) If either party disputes a determination by an authorized treating physician on
the question of whether the injured worker has or has not reached maximum medical
improvement, an independent medical examiner may be selected in accordance with
section 8-42-107.2; except that, if an authorized treating physician has not determined
that the employee has reached maximum medical improvement, the employer or insurer
may only request the selection of an independent medical examiner if all of the following
conditions are met:
(A) At least twenty-four months have passed since the date of injury;
(B) A party has requested in writing that an authorized treating physician
determine whether the employee has reached maximum medical improvement;
(C) Such authorized treating physician has not determined that the employee has
reached maximum medical improvement; and
(D) A physician other than such authorized treating physician has determined that
the employee has reached maximum medical improvement.
(III) Notwithstanding paragraph (c) of this subsection (8), if the independent
medical examiner selected pursuant to subparagraph (II) of this paragraph (b) finds that
the injured worker has reached maximum medical improvement, the independent medical
examiner shall also determine the injured worker's permanent medical impairment rating.
The finding regarding maximum medical improvement and permanent medical
impairment of an independent medical examiner in a dispute arising under subparagraph
(II) of this paragraph (b) may be overcome only by clear and convincing evidence. A
hearing on this matter shall not take place until the finding of the independent medical
examiner has been filed with the division.
(b.5) When an authorized treating physician providing primary care who is not
accredited under the level II accreditation program pursuant to section 8-42-101 (3.5)
makes a determination that an employee has reached maximum medical improvement, the
Colorado Revised Statutes 2013
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following procedures shall apply:
(I) (A) If the employee is not a state resident upon reaching maximum medical
improvement, such physician shall, within twenty days after the determination of
maximum medical improvement, determine whether the employee has sustained any
permanent impairment. If the employee has sustained any permanent impairment, such
physician shall conduct such tests as are required by the revised third edition of the
"American Medical Association Guides to the Evaluation of Permanent Impairment" to
determine such employee's medical impairment rating and shall transmit to the selfinsured employer or insurer all test results and all relevant medical information.
(B) However, if the employee chooses not to have the authorized treating
physician perform such tests, or if the information is not transmitted in a timely manner,
the self-insured employer or insurer shall arrange and pay for the employee to return to
Colorado for examination, testing, and rating, at the expense of the self-insured employer
or insurer. If the employee refuses to return to Colorado for examination, no permanent
disability benefits shall be awarded.
(C) The self-insured employer or insurer shall, within twenty days after receipt of
the medical information described in sub-subparagraph (A) of this subparagraph (I),
appoint a level II accredited physician to determine the employee's medical impairment
rating. If the employee was treated by an authorized level II accredited physician in
Colorado for the same injury for which a medical impairment rating is being sought, the
self-insured employer or insurer shall request such physician to determine the claimant's
medical impairment rating. At the same time as such rating is transmitted to the selfinsured employer or insurer, the level II physician shall transmit a copy of the same to the
authorized treating physician and the employee.
(D) If the employee, insurer, or self-insured employer disputes a medical
impairment rating, including a finding that there is no medical impairment, made pursuant
to sub-subparagraph (A) of this subparagraph (I), the parties to the dispute may select an
independent medical examiner in accordance with section 8-42-107.2 to review the
rating. The cost of such independent medical examination shall be borne by the
requesting party. The finding of such independent medical examiner shall be overcome
only by clear and convincing evidence. Any review by an independent medical examiner
shall be based on the employee's written medical records only, without further
examination, unless a party to the dispute requests that such review include a physical
examination by the independent medical examiner. Except when the provisions of section
8-42-107.2 (5) (b) apply, the party requesting a physical examination shall pay all
additional costs, including, if applicable, the reasonable cost of returning the employee to
Colorado.
(II) If the employee is a state resident, such physician shall, within twenty days
after the determination of maximum medical improvement, determine whether the
employee has sustained any permanent impairment. If the employee has sustained any
Colorado Revised Statutes 2013
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permanent impairment, such physician shall refer such employee to a level II accredited
physician for a medical impairment rating, which shall be based on the revised third
edition of the "American Medical Association Guides to the Evaluation of Permanent
Impairment". If the referral is not timely made by the authorized treating physician, the
insurer or self-insured employer shall refer the employee to a level II accredited physician
within forty days after the determination of maximum medical improvement. If the
employee, insurer, or self-insured employer disputes the finding regarding permanent
medical impairment, including a finding that there is no permanent medical impairment,
the parties to the dispute may select an independent medical examiner in accordance with
section 8-42-107.2. The finding of any such independent medical examiner shall be
overcome only by clear and convincing evidence.
(c) When the injured employee's date of maximum medical improvement has been
determined pursuant to subparagraph (I) of paragraph (b) of this subsection (8), and there
is a determination that permanent medical impairment has resulted from the injury, the
authorized treating physician shall determine a medical impairment rating as a percentage
of the whole person based on the revised third edition of the "American Medical
Association Guides to the Evaluation of Permanent Impairment", in effect as of July 1,
1991. Except for a determination by the authorized treating physician providing primary
care that no permanent medical impairment has resulted from the injury, any physician
who determines a medical impairment rating shall have received accreditation under the
level II accreditation program pursuant to section 8-42-101. For purposes of determining
levels of medical impairment, the physician shall not render a medical impairment rating
based on chronic pain without anatomic or physiologic correlation. Anatomic correlation
must be based on objective findings. If either party disputes the authorized treating
physician's finding of medical impairment, including a finding that there is no permanent
medical impairment, the parties may select an independent medical examiner in
accordance with section 8-42-107.2. The finding of the independent medical examiner
may be overcome only by clear and convincing evidence. A hearing on this matter shall
not take place until the finding of the independent medical examiner has been filed with
the division.
(c.5) When an injury results in the total loss or total loss of use of an arm at the
shoulder, a forearm at the elbow, a hand at the wrist, a leg at the hip or so near thereto as
to preclude the use of an artificial limb, the loss of a leg at or above the knee where the
stump remains sufficient to permit the use of an artificial limb, a foot at the ankle, an eye,
or a combination of any such losses, the benefits for such loss shall be determined
pursuant to this subsection (8).
(d) Medical impairment benefits shall be determined by multiplying the medical
impairment rating determined pursuant to paragraph (c) of this subsection (8) by the age
factor determined pursuant to paragraph (e) of this subsection (8) and by four hundred
weeks and shall be calculated at the temporary total disability rate specified in section 8Colorado Revised Statutes 2013
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42-105. Up to ten thousand dollars of the total amount of any such award or scheduled
award shall be automatically paid in a lump sum less the discount as calculated in section
8-43-406 upon the injured employee's written request to the employer or, if insured, to the
employer's insurance carrier. The remaining periodic payments of any such award, after
subtracting the total amount of the lump sum requested by the employee without
subtracting the discount calculated in section 8-43-406, shall be paid at the temporary
total disability rate but not less than one hundred fifty dollars per week and not more than
fifty percent of the state average weekly wage, beginning on the date of maximum
medical improvement.
(e) The age factor for use in calculating medical impairment benefits pursuant to
this subsection (8) is as follows:
AGE
20 or younger
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
Colorado Revised Statutes 2013
FACTOR
1.80
1.78
1.76
1.74
1.72
1.70
1.68
1.66
1.64
1.62
1.60
1.58
1.56
1.54
1.52
1.50
1.48
1.46
1.44
1.42
1.40
1.38
1.36
1.34
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44
1.32
45
1.30
46
1.28
47
1.26
48
1.24
49
1.22
50
1.20
51
1.18
52
1.16
53
1.14
54
1.12
55
1.10
56
1.08
57
1.06
58
1.04
59
1.02
60 or older
1.00
(f) In all claims in which an authorized treating physician recommends medical
benefits after maximum medical improvement, and there is no contrary medical opinion
in the record, the employer shall, in a final admission of liability, admit liability for
related reasonable and necessary medical benefits by an authorized treating physician.
8-42-107.2. Selection of independent medical examiner - procedure - time disclosures regarding physician relationships with insurers, self-insured employers,
or claimants - rules - applicability. (1) This section governs the selection of an
independent medical examiner, also referred to in this section as an "IME", to resolve
disputes arising under section 8-42-107.
(2) (a) (I) Except as otherwise provided in subparagraph (II) of this paragraph (a),
the time for selection of an IME commences as follows, depending on which party
initiates the dispute:
(A) For the claimant, the time for selection of an IME commences with the date of
mailing of a final admission of liability by the insurer or self-insured employer that
includes an impairment rating issued in accordance with section 8-42-107.
(B) For the insurer or self-insured employer, the time for selection of an IME
commences with the date on which the disputed finding or determination is mailed or
physically delivered to the insurer or self-insured employer.
(II) If, as of the date on which the time for selection of an IME would otherwise
commence, a medical condition is not yet ratable because of a provision in the medical
treatment guidelines or in the revised third edition of the "American Medical Association
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Guides to the Evaluation of Permanent Impairment", the time for selection of an IME
shall commence on the date on which an impairment rating is mailed or physically
delivered.
(b) If any party disputes a finding or determination of the authorized treating
physician, such party shall request the selection of an IME. The requesting party shall
notify all other parties in writing of the request, on a form prescribed by the division by
rule, and shall propose one or more acceptable candidates for the purpose of entering into
negotiations for the selection of an IME. Such notice and proposal is effective upon
mailing via United States mail, first-class postage paid, addressed to the division and to
the last-known address of each of the other parties. Unless such notice and proposal are
given within thirty days after the date of mailing of the final admission of liability or the
date of mailing or delivery of the disputed finding or determination, as applicable
pursuant to paragraph (a) of this subsection (2), the authorized treating physician's
findings and determinations shall be binding on all parties and on the division.
(c) If the insurer or self-insured employer requests an IME and the examination is
conducted before the insurer or self-insured employer admits liability pursuant to section
8-43-203 (2) (b), the claimant may not request a second independent medical examination
on that issue but may appeal the IME's decision, as set forth in section 8-43-203 (2) (b)
(II).
(3) (a) Upon receiving the requesting party's notice and proposal pursuant to
subsection (2) of this section, the other parties have until the end of the thirtieth day after
the date of mailing of such notice and proposal within which to negotiate and select an
IME. If the parties agree on an IME on or before such thirtieth day, the requesting party
shall promptly notify the IME in writing that he or she has been selected. If, within such
time, the parties are unable to agree or the requesting party receives no response to the
notice and proposal, the insurer or self-insured employer shall give written notice of such
fact to the division within thirty days via United States mail, first-class postage paid. The
division shall then, within ten days after receiving such written notice, select three
physicians by a revolving selection process established by the division from the list of
physicians maintained by the division. The division shall administer the list in such
fashion as to ensure that the names of candidates to serve as IME in each pending case
remain confidential until the IME is selected. The director of the division shall
promulgate rules to implement the process of selecting a panel of three physicians from
which the parties may select a physician to conduct a division independent medical
examination. The selection of a physician panel shall be based on various factors,
including, but not limited to, the designation by rule of the fields of specialization
authorized to perform independent medical examinations for conditions listed under each
medical treatment guideline and measures to prevent the over-utilization of physicians or
specialists. The requesting party shall have the opportunity to strike one of the three
physicians from the list, followed by the opposing party who shall then be given the
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opportunity to strike one physician from the list. The remaining IME physician shall be
designated by the division to conduct the IME. If one or neither party strikes a physician
from the list, the division shall select the physician to conduct the IME from the
remaining physicians on the list.
(b) Upon selection of the IME, the insurance carrier shall provide to the IME and
all other parties a complete copy of all medical records in its possession pertaining to the
subject injury, postmarked or hand-delivered within fourteen days prior to the
independent medical examination. If the insurance carrier or its representative fails to
timely submit such medical records, the claimant may request that the division cancel the
independent medical examination or the claimant may submit all the medical records he
or she has available within ten days prior to the independent medical examination, or as
otherwise arranged by the division with the IME. If the claimant submits medical records,
the defaulting party may supplement such records pursuant to rules of the division. This
paragraph (b) shall not be construed to prohibit an independent medical examination from
being rescheduled.
(c) Any supplemental medical records shall be prepared according to the rules of
the division and shall be submitted to the IME and all other parties no later than seven
days prior to the independent medical examination.
(d) (I) The IME shall neither contact any of the authorized treating physicians or
any examining or reviewing physician nor request a claimant to undergo repeat testing
when the testing results were valid and the IME has resolved any disparity in testing
results.
(II) Subparagraph (I) of this paragraph (d), as enacted by Senate Bill 09-168,
enacted in 2009, is declared to be procedural and was intended to and shall apply to all
workers' compensation claims, regardless of the date the claim was filed.
(3.5) (a) Prior to making a determination to strike a physician from the list of IME
physicians provided by the division in accordance with paragraph (a) of subsection (3) of
this section, a party may request and shall be entitled to obtain and review a summary
disclosure pertaining to any business, financial, employment, or advisory relationship
between a listed physician, or any entity affiliated with the physician, and the insurer,
self-insured employer, or claimant who is a party to the claim. The party shall not be
required to make its determination to strike a physician from the list until he or she has
received and has had a reasonable opportunity to review the summary disclosure.
(b) The director shall adopt rules as necessary to implement this subsection (3.5).
At a minimum, the rules shall:
(I) Require physicians to disclose the requested business, financial, employment,
or advisory relationship information in a summarized format;
(II) Detail the form and manner in which the summary disclosure is to be
provided;
(III) Set parameters regarding the period within which a requesting party is
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allowed to review the summary disclosure prior to making a determination to strike a
physician from the list; and
(IV) Prohibit a physician who fails to disclose the requested summarized
information from conducting an independent medical examination until he or she
complies with the request.
(4) (a) Upon receipt of the IME's report, the division has five business days to
review the report and either:
(I) Issue a notice to all parties that the division has received the IME's report; or
(II) Notify the IME of any deficiencies in the report by letter and send copies to all
parties.
(b) Upon notification of any deficiencies identified in the IME's report, the IME
has twenty days to remedy the deficiencies and resubmit the report. After the report has
been resubmitted, the division shall comply with paragraph (a) of this subsection (4). If
the IME fails to timely respond to the notification of deficiencies, the division shall issue
a notice that it has received the IME's report and the insurer or self-insured employer shall
comply with paragraph (c) of this subsection (4).
(c) Within twenty days after the date of the mailing of the division's notice that it
has received the IME's report, the insurer or self-insured employer shall either file its
admission of liability pursuant to section 8-43-203 or request a hearing before the
division contesting one or more of the IME's findings or determinations contained in such
report.
(5) (a) Except as provided in paragraph (b) of this subsection (5), the requesting
party shall advance the full cost of the independent medical examination to the IME at
least ten days before the appointed time for the examination.
(b) A claimant who has established that he or she is indigent shall receive an
independent medical examination without having to advance the cost to the independent
medical examiner. The director of the division of workers' compensation shall promulgate
rules to establish a procedure to determine indigence.
(6) This section was enacted by House Bill 98-1062, as enacted at the second
regular session of the sixty-first general assembly, as a remedial statute and is procedural
in nature. The purpose of this section is to improve and simplify remedies already existing
for the enforcement of rights and the redress of injuries under the workers' compensation
laws of Colorado. This section effected procedures related to the selection of an IME and
shall be applicable to all open cases with a date of injury on or after July 1, 1991, for
which a division IME has not been requested, pursuant to section 8-42-107.
8-42-107.5. Limits on temporary disability payments and permanent partial
disability payments. No claimant whose impairment rating is twenty-five percent or less
may receive more than seventy-five thousand dollars from combined temporary disability
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payments and permanent partial disability payments. No claimant whose impairment
rating is greater than twenty-five percent may receive more than one hundred fifty
thousand dollars from combined temporary disability payments and permanent partial
disability payments. For the purposes of this section, any mental impairment rating shall
be combined with the physical impairment rating to establish a claimant's impairment
rating for determining the applicable cap. For injuries sustained on and after January 1,
2012, the director shall adjust these limits on the amount of compensation for combined
temporary disability payments and permanent partial disability payments on July 1, 2011,
and each July 1 thereafter, by the percentage of adjustment made by the director to the
state average weekly wage pursuant to section 8-47-106.
8-42-107.6. Premium dividend for employing injured employees. The
commissioner of insurance shall include within the premium dividends specified in rules
and regulations promulgated pursuant to section 10-4-408 (5), C.R.S., a premium
dividend of up to ten percent if an employer reemploys injured employees at their
preinjury wages including any wage increases to which such employees would have been
entitled had the employee not been injured. The total amount of the premium dividend
shall be determined on a pro rata basis, taking into account the total number of employees
injured during the period of time the insurance policy was in effect and the total number
of injured employees who have sustained permanent partial disability as a result of their
injuries and who have been rehired by such employer.
8-42-108. Disfigurement - additional compensation. (1) If an employee is
seriously, permanently disfigured about the head, face, or parts of the body normally
exposed to public view, in addition to all other compensation benefits provided in this
article and except as provided in subsection (2) of this section, the director may allow
compensation not to exceed four thousand dollars to the employee who suffers such
disfigurement.
(2) If an employee sustains any of the following disfigurements, the director may
allow up to eight thousand dollars as compensation to the employee in addition to all
other compensation benefits provided in this article other than compensation allowed
under subsection (1) of this section:
(a) Extensive facial scars or facial burn scars;
(b) Extensive body scars or burn scars; or
(c) Stumps due to loss or partial loss of limbs.
(3) The director shall adjust the limits on the amount of compensation for
disfigurement specified in this section on July 1, 2008, and each July 1 thereafter by the
percentage of adjustment made by the director to the state average weekly wage pursuant
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to section 8-47-106.
8-42-109. Added compensation for additional injuries. Where an injured
employee sustains an injury covered by sections 8-42-107, 8-42-108, and 8-46-101 but in
addition thereto receives other injuries which are sufficient in their nature to alone cause
temporary total disability, said employee shall receive, in addition to the amounts
specified in said schedule, compensation for temporary total disability as long as said
disability is found to exist as a result of said other injuries.
8-42-110. Permanent partial disability - how determined. (Repealed)
8-42-111. Award for permanent total disability. (1) In cases of permanent total
disability, the award shall be sixty-six and two-thirds percent of the average weekly
wages of the injured employee and shall continue until death of such person so totally
disabled but not in excess of the weekly maximum benefits specified in this article for
injuries causing temporary total disability.
(2) (Deleted by amendment, L. 91, p. 1313, § 19, effective July 1, 1991.)
(3) A disabled employee capable of rehabilitation which would enable the
employee to earn any wages in the same or other employment, who refuses an offer of
employment by the same or other employer or an offer of vocational rehabilitation paid
for by the employer shall not be awarded permanent total disability.
(4) For injuries occurring on and after July 1, 1991, and before July 1, 1994, the
average weekly wage of injured employees used for computing compensation paid for
awards pursuant to subsection (1) of this section shall be increased by two percent per
year effective July 1 of each year, and such increased compensation shall be payable for
the subsequent twelve months.
(5) Repealed.
8-42-112. Acts of employees reducing compensation. (1) The compensation
provided for in articles 40 to 47 of this title shall be reduced fifty percent:
(a) Where injury is caused by the willful failure of the employee to use safety
devices provided by the employer;
(b) Where injury results from the employee's willful failure to obey any reasonable
rule adopted by the employer for the safety of the employee; or
(c) (Deleted by amendment, L. 99, p. 581, § 2, effective July 1, 1999.)
(d) Where the employee willfully misleads an employer concerning the employee's
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physical ability to perform the job, and the employee is subsequently injured on the job as
a result of the physical ability about which the employee willfully misled the employer.
Notwithstanding any other provisions of articles 40 to 47 of this title, the provisions of
this paragraph (d) shall apply in addition to any other penalty that may be imposed under
section 8-43-402.
(2) In the event the claimant or dependent is receiving periodic disability benefits
for which a reduction in Colorado workers' compensation benefits has been made
pursuant to section 8-42-103, the fifty percent reduction provided for in subsection (1) of
this section shall be computed according to the rate of benefits received by the claimant or
dependent after, and not before, such other reduction has been made.
8-42-112.5.
Limitation on payments - use of controlled
substances. (1) Nonmedical benefits otherwise payable to an injured worker are reduced
fifty percent where the injury results from the presence in the worker's system, during
working hours, of controlled substances, as defined in section 18-18-102 (5), C.R.S., that
are not medically prescribed or of a blood alcohol level at or above 0.10 percent, or at or
above an applicable lower level as set forth by federal statute or regulation, as evidenced
by a forensic drug or alcohol test conducted by a medical facility or laboratory licensed or
certified to conduct such tests. A duplicate sample from any test conducted must be
preserved and made available to the worker for purposes of a second test to be conducted
at the worker's expense. If the test indicates the presence of such substances or of alcohol
at such level, it is presumed that the employee was intoxicated and that the injury was due
to the intoxication. This presumption may be overcome by clear and convincing evidence.
(2) As used in this section, "nonmedical benefits" means all benefits provided for
in articles 40 to 47 of this title other than disbursements for medical, surgical, nursing,
and hospital services, apparatus, and supplies.
8-42-113. Limitations on payments to prisoners - incentives to sheriffs and
department of corrections. (1) Notwithstanding any other provision of law to the
contrary except as provided in subsection (4) of this section, any individual who is
otherwise entitled to benefits under articles 40 to 47 of this title shall neither receive nor
be entitled to such benefits for any week following conviction during which such
individual is confined in a jail, prison, or any department of corrections facility.
(1.5) (a) In the event the identifying information transmitted to the department of
labor and employment pursuant to section 17-26-118.5 (2), C.R.S., results in the
termination of workers' compensation benefits pursuant to subsection (1) of this section,
the employer or the insurance carrier, if any, shall pay to the sheriff a reward equal to ten
percent of one week's benefit to which the ineligible individual would otherwise be
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eligible to receive.
(b) An individual who is ineligible pursuant to subsection (1) of this section shall
repay to the employer or the insurance carrier, if any, any amounts received while not
eligible.
(2) After such individual's release from confinement, the individual shall be
restored to the same position with respect to entitlement to benefits under articles 40 to 47
of this title as said individual would otherwise have enjoyed at the point in time of such
release from confinement. However, except as provided in subsection (3) of this section,
said individual shall not be able to recover, recoup, or otherwise be retroactively entitled
to any of the benefits to which the individual would have been entitled without the
limitation specified in subsection (1) of this section.
(3) If upon appeal such conviction is overturned, such individual shall be entitled
to recover the benefits to which such individual would have been entitled except for the
operation of subsection (1) of this section.
(4) This section shall not apply to benefits under articles 40 to 47 of this title to
which an inmate of a department of corrections facility or a city, county, or city and
county jail is entitled for injury or occupational disease arising out of and in the course of
the inmate working, performing services, or participating in a training, rehabilitation, or
work release program that has been certified by the federal prison industry enhancement
certification program pursuant to the federal "Justice System Improvement Act of 1979",
18 U.S.C. sec. 1761 (c). The inmate shall be entitled to benefits in accordance with
section 8-40-301 (3) (a).
8-42-113.5. Recovery of overpayments - notice required. (1) If a claimant has
received an award for the payment of disability benefits or a death benefit under articles
40 to 47 of this title and also receives any payment, award, or entitlement to benefits
under the federal old-age, survivors, and disability insurance act, an employer-paid
retirement benefit plan, or any other plan, program, or source for which the original
disability benefits or death benefit is required to be reduced pursuant to said articles, but
which were not reflected in the calculation of such disability benefits or death benefit:
(a) Within twenty calendar days after learning of such payment, award, or
entitlement, the claimant, or the legal representative of a claimant who is a minor, shall
give written notice of the payment, award, or entitlement to the employer or, if the
employer is insured, to the employer's insurer. If the claimant or legal representative gives
such notice, any overpayment that resulted from the failure to make the appropriate
reduction in the original calculation of such disability benefits or death benefit shall be
recovered by the employer or insurer in installments at the same rate as, or a lower rate
than, the rate at which the overpayments were made. Such recovery shall reduce the
disability benefits or death benefit payable after all other applicable reductions have been
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made.
(b) If the claimant or legal representative of a claimant who is a minor was
receiving benefits in excess of the amounts that should have been paid under articles 40 to
47 of this title and failed to give the notice required by paragraph (a) of this subsection
(1), the employer or insurer is authorized to cease all disability or death benefit payments
immediately until the overpayments have been recovered in full.
(b.5) (I) After the filing of a final admission of liability, except in cases of fraud,
any attempt to recover an overpayment shall be asserted within one year after the time the
requestor knew of the existence of the overpayment.
(II) Subparagraph (I) of this paragraph (b.5), as enacted by Senate Bill 09-168,
enacted in 2009, is declared to be procedural and was intended to and shall apply to all
workers' compensation claims, regardless of the date the claim was filed.
(c) If for any reason recovery of overpayments as contemplated in paragraph (a) or
(b) of this subsection (1) is not practicable, the employer or insurer is authorized to seek
an order for repayment.
(d) When an overpayment is repaid to the insurer, the insurer shall credit the
losses on the claim and report the corrected losses to the insurance rating organization on
the next scheduled report for purposes of the employer's experience modification.
8-42-114. Death benefits. In case of death, the dependents of the deceased
entitled thereto shall receive as compensation or death benefits sixty-six and two-thirds
percent of the deceased employee's average weekly wages, not to exceed a maximum of
ninety-one percent of the state average weekly wage per week for accidents occurring on
or after July 1, 1989, and not less than a minimum of twenty-five percent of the
applicable maximum per week. In cases where it is determined that periodic death
benefits granted by the federal old age, survivors, and disability insurance act or a
workers' compensation act of another state or of the federal government are payable to an
individual and the individual's dependents, the aggregate benefits payable for death
pursuant to this section shall be reduced, but not below zero, by an amount equal to fifty
percent of such periodic benefits.
8-42-115. Death from injury - benefits. (1) In case death proximately results
from the injury, the benefits shall be in the amount and to the persons following:
(a) If there are no dependents, compensation shall be limited to the expenses
provided for medical, hospital, and funeral expense of the deceased, together with such
sums as may have accrued or been paid to the deceased during the deceased's lifetime for
disability, and any amount or payment which is due under section 8-46-101.
(b) If there are wholly dependent persons at the time of death, the payment shall
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be in accordance with the provisions of section 8-42-114.
(c) If there are partially dependent persons at the time of death, the payment shall
not exceed sixty-six and two-thirds percent of the average weekly wages, subject to the
limitations of articles 40 to 47 of this title as to maximum and minimum weekly amounts,
to continue for such period after the date of death as is required to pay, at the weekly rate,
the total amount awarded by the director to be paid to such partially dependent persons.
8-42-116. When death not proximate result - benefits. (1) If death occurs to an
injured employee, other than as a proximate result of any injury, before disability
indemnity ceases and the deceased leaves persons wholly dependent upon the deceased
for support, death benefits shall be as follows:
(a) Where the injury proximately caused permanent total disability, the death
benefit shall consist of the unpaid and unaccrued portion of the permanent total disability
benefit which the employee would have received had the employee lived until receiving
compensation at the employee's regular rate for a period of six years.
(b) Where the injury proximately caused permanent partial disability, the death
benefit shall consist of the unpaid and unaccrued portion of the permanent partial
disability benefit which the employee would have received had he lived.
8-42-117. Benefits to partial dependents. (1) If death occurs to an injured
employee, other than as a proximate result of the injury, before disability indemnity
ceases and the deceased leaves persons partially dependent upon the deceased for support,
death benefits shall be as follows:
(a) Where the injury proximately caused permanent total disability, the death
benefit shall consist of that proportion of the unpaid and unaccrued portion of the
permanent total disability benefit which the employee would have received had the
employee lived until said employee had received compensation at the employee's regular
rate for a period of six years as the amount devoted by the deceased to the support of such
persons for the year immediately prior to the injury bears to the total income of the
persons during said year.
(b) Where the injury caused permanent partial disability, the death benefit shall
consist of that proportion of the unpaid and unaccrued portion of the permanent partial
disability benefit which the employee would have received if the employee had lived as
the amount devoted by the deceased to the support of such persons for the year
immediately prior to the injury bears to the total income of the persons during said year.
8-42-118.
Applicability of repeal of death benefits to nonresident
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dependents. The repeal of section 8-50-114, as said section existed prior to July 1, 1983,
shall not affect the payments of death benefits which are being paid before July 1, 1983.
8-42-119. Partial dependents - compensation. Partial dependents shall be
entitled to receive only that portion of the benefits provided for those wholly dependent
which the average amount of the wages regularly contributed by the deceased to such
partial dependents at and for a reasonable time immediately prior to the injury bore to the
total income of the dependents during the same time. The director has power and
discretion to determine the proper elements to be considered as income of said
dependents in each particular case. Where there are persons both wholly dependent and
partially dependent, only those wholly dependent shall be entitled to compensation.
8-42-120. Termination of right to benefits. Death benefits shall be paid to a
dependent widow or widower for life or until remarriage, and, if there are no dependent
children, as defined in section 8-41-501 (1) (b) and (1) (c), at the time of remarriage, a
two-year lump-sum benefit without discount, less any lump sums previously paid, shall be
paid to such widow or widower. Death benefits shall terminate upon the happening of any
of the following contingencies and shall thereupon survive to the remaining dependents,
if any: Upon the death of any dependent; when a child or brother or sister of the deceased
reaches the age of eighteen years, except as otherwise provided in sections 8-41-501 (1)
(b) and (1) (c) and 8-41-502; and upon the expiration of six years from the date of the
death of the injured employee in the case of partial dependents.
8-42-121. Director to determine and apportion benefits. Death benefits shall be
paid to such one or more of the dependents of the decedent, for the benefit of all the
dependents entitled to such compensation, as may be determined by the director, who may
apportion the benefits among such dependents in such manner as the director may deem
just and equitable. Payment to a dependent subsequent in right may be made, if the
director deems it proper, which payment shall operate to discharge all other claims
therefor. The dependents or persons to whom benefits are paid shall apply the same to the
use of the several beneficiaries thereof according to their respective claims upon the
decedent for support in compliance with the finding and direction of the director.
8-42-122. Minor dependents - safeguarding payments. In all cases of death
where the dependents are minor children, it shall be sufficient for the surviving spouse or
a friend to make application and claim on behalf of the minor children. The director, for
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the purpose of protecting the rights and interests of any dependents whom the director
deems incapable of fully protecting their own interests, may deposit the payments in any
type of account in state or national banks insured by the federal deposit insurance
corporation or its successor, savings and loan associations that are insured by the federal
deposit insurance corporation or its successor, or credit unions that are insured by the
national credit union share insurance fund and may otherwise provide for the manner and
method of safeguarding the payments due such dependents in such manner as the director
sees fit.
8-42-123. Burial expenses. When, as a proximate result of an injury, death occurs
to an injured employee, there shall be paid in one lump sum within thirty days after death
a sum not to exceed seven thousand dollars for reasonable funeral and burial expenses.
Said sum may be paid to the undertaker, cemetery, or any other person who has paid the
funeral and burial costs, if the director so orders. If the employee leaves no dependents,
compensation shall be limited to said sum and the compensation, if any, which has
accrued to date of death and the medical, surgical, and hospital expenses provided in
articles 40 to 47 of this title. If the deceased employee leaves dependents, said sum shall
be paid in addition to all other sums of compensation provided for in this article.
8-42-124. Assignability and exemption of claims - payment to employers when. (1) Except for amounts due under court-ordered support or for a judgment for a
debt for fraudulently obtained public assistance, fraudulently obtained overpayments of
public assistance, or excess public assistance paid for which the recipient was ineligible,
claims for compensation or benefits due, or any proceeds thereof, under articles 40 to 47
of this title shall not be assigned, released, or commuted except as provided in said
articles and shall be exempt from all claims of creditors and from levy, execution, and
attachment or other remedy or recovery or collection of a debt, which exemption may not
be waived.
(2) The power given in any power of attorney or other authority from any injured
employee or the dependents of any killed employee purporting to authorize any other
person to receive, be paid, or receipt for any compensation benefits awarded any such
claimant shall be wholly void and illegal and of no force and effect; except that:
(a) Any employer who is subject to the provisions of articles 40 to 47 of this title
and who, by separate agreement, working agreement, contract of hire, or any other
procedure, continues to pay a sum in excess of the temporary total disability benefits
prescribed by articles 40 to 47 of this title to any employee temporarily disabled as a
result of any injury arising out of and in the course of such employee's employment and
has not charged the employee with any earned vacation leave, sick leave, or other similar
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benefits shall be reimbursed if insured by an insurance carrier or shall take credit if selfinsured to the extent of all moneys that such employee may be eligible to receive as
compensation or benefits for temporary partial or temporary total disability under the
provisions of said articles, subject to the approval of the director. If the employee is
injured while under a fixed duration contract of employment, all salary and wages paid
pursuant to that contract shall be prorated over the duration of the contract in determining
whether in any given week the employer paid a sum in excess of the temporary total
disability benefit.
(b) This subsection (2) shall not apply to an attorney licensed to practice law in
this state and acting in accordance with a power of attorney given by the claimant solely
for the purpose of distributing funds pursuant to an admission of liability or an order of
the division.
(3) Such payments shall be paid directly to the employer during the period of time
that such employer continues to pay a sum in excess of the temporary total disability
benefits prescribed by articles 40 to 47 of this title and has not charged any earned
vacation leave, sick leave, or other similar benefits to any employee so disabled and for so
long as such employee is eligible for temporary disability benefits under the provisions of
articles 40 to 47 of this title. The payment of such moneys to an employer shall constitute
the payment of compensation or benefits to the employee in accordance with the
provisions of section 8-42-103.
(4) When the payment by an employer to any such disabled employee is reduced
to a sum equal to or less than the temporary total disability benefits prescribed by articles
40 to 47 of this title, or when the employer has charged the employee with any earned
vacation leave, sick leave, or other similar benefits for any reason, the rights of the
employee to receive direct payment of any award for temporary partial or temporary total
disability that said employee may be entitled to on and after the effective date of such
reduction shall be reinstated in accordance with the provisions of articles 40 to 47 of this
title.
(5) Any employer subject to the provisions of articles 40 to 47 of this title and
otherwise qualifying for direct payment of employee benefits as provided in this section
shall notify the division and the insurance carrier of such employer's eligibility to receive
such moneys. The director shall approve such direct payment after the filing of such
information by the employer as the director may require.
(6) Nothing in this section shall be construed to limit in any way the right of any
employee to full payment of any award which may be granted to said employee for
permanent partial or permanent total disability under the provisions of articles 40 to 47 of
this title; except that benefits for permanent total disability and permanent partial
disability shall be subject to wage assignment or income assignment as wages pursuant to
section 14-14-102 (9), C.R.S., and subject to garnishment as earnings pursuant to section
13-54.5-101 (2) (b), C.R.S., and subject to administrative lien and attachment pursuant to
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section 26-13-122, C.R.S., for purposes of enforcement of court-ordered child support
and subject to garnishment as earnings pursuant to sections 13-54-104 (1) (b) (IV) and
13-54.5-101 (2) (d), C.R.S., for purposes of enforcement of a judgment for a debt for
fraudulently obtained public assistance, fraudulently obtained overpayments of public
assistance, or excess public assistance paid for which the recipient was ineligible.
(7) Following an injury, any injured employee may authorize in writing the
continuation of any payroll deduction which the employee had authorized or could have
authorized before the injury, which authorization shall be legal and may be honored by
the employer to the extent that proceeds of compensation of claims are available to the
employer or are made available to the employer by the employer's insurance carrier for
this purpose until the authorization is revoked in writing by the injured employee.
(8) If any employer who pays to an injured employee a sum in excess of the
temporary total disability benefits prescribed by articles 40 to 47 of this title and who has
not charged the employee with any earned vacation leave, sick leave, or other similar
benefits seeks to have assigned the compensation benefits otherwise due the injured
employee as provided in this section, the employer shall notify the employee of said
request at the same time the employer makes the request of the director or insurance
carrier or both.
8-42-125. Data gathering on workers' compensation system. The governor and
the leader of the opposing party in the house of representatives and the leader of the
opposing party in the senate shall contract with a person or entity for obtaining
information on the workers' compensation system. The person or entity gathering the
information shall work solely at the unanimous direction of the governor and the
opposition leadership. Issues or topics that will be subject to the information gathering
process shall be determined by unanimous decision of the governor and the opposition
leadership. The contractor for the gathering of the information shall have complete access
to all records of and files in the division of workers' compensation and the office of
administrative courts. Such contractor shall guarantee that any information gathered on
any individual shall be kept confidential.
ARTICLE 43
Procedure
PART 1
NOTICES AND REPORTS
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8-43-101. Record of injuries - occupational disease - reported to division rules. (1) Every employer shall keep a record of all injuries that result in fatality to, or
permanent physical impairment of, or lost time from work for the injured employee in
excess of three shifts or calendar days and the contraction by an employee of an
occupational disease that has been listed by the director by rule. Within ten days after
notice or knowledge that an employee has contracted such an occupational disease, or the
occurrence of a permanently physically impairing injury, or lost-time injury to an
employee, or immediately in the case of a fatality, the employer shall, upon forms
prescribed by the division for that purpose, report said occupational disease, permanently
physically impairing injury, lost-time injury, or fatality to the division. The report shall
contain such information as shall be required by the director.
(2) Unless exempted by the director pursuant to rule because of a small number of
filings or a showing of financial hardship, beginning July 1, 2006, reports submitted
pursuant to this section shall be submitted in an electronic format as determined by the
director. Exposure to an injurious substance as defined by the director by rule and
injuries to employees that result in no more than three days' or three shifts' loss of time
from work, or no permanent physical impairment, or no fatality to the employee shall be
reported by the employer only to the insurer of said employer's workers' compensation
insurance liability, which injuries and exposure the insurer shall report only by monthly
summary form to or as otherwise requested by the division.
8-43-102. Notice to employer of injury - notice to employees of requirement failure to report. (1) (a) Every employee who sustains an injury resulting from an
accident shall notify said employee's employer in writing of the injury within four days of
the occurrence of the injury. If the employee is physically or mentally unable to provide
said notice, the employee's foreman, superintendent, manager, or any other person in
charge who has notice of said injury shall submit such written notice to the employer.
Any other person who has notice of said injury may submit a written notice to the said
person in charge or to the employer, and in that event the injured employee shall be
relieved of the obligation to give such notice. Otherwise, if said employee fails to report
said injury in writing, said employee may lose up to one day's compensation for each
day's failure to so report. If, at the time of said injury, the employer has failed to display
the notice specified in paragraph (b) of this subsection (1), the time period allotted to the
employee shall be tolled for the duration of such failure.
(b) Every employer shall display at all times in a prominent place on the
workplace premises a printed card with a minimum height of fourteen inches and a width
of eleven inches with each letter to be a minimum of one-half inch in height, which shall
read as follows:
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WARNING
IF YOU ARE INJURED ON THE JOB, WRITTEN NOTICE OF
YOUR INJURY MUST BE GIVEN TO YOUR EMPLOYER WITHIN
FOUR WORKING DAYS AFTER THE ACCIDENT, PURSUANT TO
SECTION 8-43-102 (1), COLORADO REVISED STATUTES.
IF THE INJURY RESULTS FROM YOUR USE OF ALCOHOL OR
CONTROLLED SUBSTANCES, YOUR WORKERS'
COMPENSATION DISABILITY BENEFITS MAY BE REDUCED
BY ONE-HALF IN ACCORDANCE WITH SECTION 8-42-112.5,
COLORADO REVISED STATUTES.
(1.5) (a) Every employee of an employer who has permission to be its own
insurance carrier pursuant to section 8-44-201 or of an employer who participates in a
public entity self-insurance pool pursuant to section 8-44-204 who sustains an injury
resulting from an accident shall notify his employer in writing of said injury within four
working days of the occurrence of the injury, unless the employer, or the employee's
foreman, superintendent, or manager has written notice of said injury. If the employee is
physically or mentally unable to provide said notice, the employee's foreman,
superintendent, or manager, or any other person in charge who has written notice of said
injury, shall submit such written notice to the employer. If said employee fails to report
said injury in writing, such employee may lose up to one day's compensation for each
day's failure to so report. Any other person who has notice of said injury may submit a
written notice to the employer which report shall relieve the injured employee from
reporting the accident. Any employer receiving written notice of an injury pursuant to this
subsection (1.5) shall affix thereon the date and time of receipt of such notice and shall
make a copy of such notice available to the injured employee within two working days
following receipt of such notice.
(b) Every employer who has permission to be its own insurance carrier pursuant to
section 8-44-201 or who participates in a public entity self-insurance pool pursuant to
section 8-44-204 shall display at all times in a prominent place on the workplace premises
a printed card with a minimum height of fourteen inches and a width of eleven inches
with each letter to be a minimum of one-half inch in height, which shall read as follows:
WARNING
IF YOU ARE INJURED ON THE JOB, WRITTEN NOTICE OF
YOUR INJURY MUST BE GIVEN TO YOUR EMPLOYER WITHIN
FOUR WORKING DAYS AFTER THE ACCIDENT, PURSUANT TO
SECTION 8-43-102 (1.5), COLORADO REVISED STATUTES.
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IF THE INJURY RESULTS FROM YOUR USE OF ALCOHOL OR
CONTROLLED SUBSTANCES, YOUR WORKERS'
COMPENSATION DISABILITY BENEFITS MAY BE REDUCED
BY ONE-HALF IN ACCORDANCE WITH SECTION 8-42-112.5,
COLORADO REVISED STATUTES.
(2) Written notice of the contraction of an occupational disease shall be given to
the employer by the affected employee or by someone on behalf of the affected employee
within thirty days after the first distinct manifestation thereof. In the event of death from
such occupational disease, written notice thereof shall be given to the employer within
thirty days after such death. Failure to give either of such notices shall be deemed waived
unless objection is made at a hearing on the claim prior to any award or decision thereon.
Actual knowledge by an employer in whose employment an employee was last injuriously
exposed to an occupational disease of the contraction of such disease by such employee
and of exposure to the conditions causing it shall be deemed notice of its contraction. If
the notice required in this section is not given as provided and within the time fixed, the
director may reduce the compensation that would otherwise have been payable in such
manner and to such extent as the director deems just, reasonable, and proper under the
existing circumstances.
8-43-103. Notice of injury - time limit. (1) Notice of an injury, for which
compensation and benefits are payable, shall be given by the employer to the division and
insurance carrier, unless the employer is self-insured, within ten days after the injury, and,
in case of the death of any employee resulting from any such injury or any accident in
which three or more employees are injured, the employer shall give immediate notice
thereof to the director. If no such notice is given by the employer, as required by articles
40 to 47 of this title, such notice may be given by any person. Any notice required to be
filed by an injured employee or, if deceased, by said employee's dependents may be made
and filed by anyone on behalf of such claimant and shall be considered as done by such
claimant if not specifically disclaimed or objected to by such claimant in writing filed
with the division within a reasonable time. Such notice shall be in writing and upon forms
prescribed by the division for that purpose and served upon the division by delivering to,
or by mailing by registered mail two copies thereof addressed to, the division at its office
in Denver, Colorado. Upon receipt of such notice from a claimant, the division shall
immediately mail one copy thereof to said employer or said employer's agent or insurance
carrier.
(2) The director and administrative law judges employed by the office of
administrative courts shall have jurisdiction at all times to hear and determine and make
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findings and awards on all cases of injury for which compensation or benefits are
provided by articles 40 to 47 of this title. Except in cases of disability or death resulting
from exposure to radioactive materials, substances, or machines or to fissionable
materials, or any type of malignancy caused thereby, or from poisoning by uranium or its
compounds, or from asbestosis, silicosis, and anthracosis, the right to compensation and
benefits provided by said articles shall be barred unless, within two years after the injury
or after death resulting therefrom, a notice claiming compensation is filed with the
division. This limitation shall not apply to any claimant to whom compensation has been
paid or if it is established to the satisfaction of the director within three years after the
injury or death that a reasonable excuse exists for the failure to file such notice claiming
compensation and if the employer's rights have not been prejudiced thereby, and the
furnishing of medical, surgical, or hospital treatment by the employer shall not be
considered payment of compensation or benefits within the meaning of this section; but,
in all cases in which the employer has been given notice of an injury and fails, neglects,
or refuses to report said injury to the division as required by the provisions of said
articles, this statute of limitations shall not begin to run against the claim of the injured
employee or said employee's dependents in the event of death until the required report has
been filed with the division.
(3) In cases of disability or death resulting from exposure to radioactive materials,
substances, or machines or to fissionable materials, or any type of malignancy caused
thereby, or from poisoning by uranium or its compounds, or from asbestosis, silicosis, or
anthracosis, the right to compensation and benefits shall be barred unless, within five
years after the commencement of disability or death, a notice claiming compensation is
filed with the division.
8-43-104. Electronic filings - rules. (1) The rejection for technical errors by the
division of any document, form, or notice that is filed electronically shall not affect the
validity of the notice to the claimant or any other party.
(2) The director may promulgate rules concerning electronic filing of documents,
forms, or notices in accordance with article 4 of title 24, C.R.S. Such rules shall be
consistent with any policies, standards, and guidelines set forth by the office of
information technology, created in section 24-37.5-103, C.R.S.
PART 2
SETTLEMENT AND HEARING PROCEDURES
8-43-201.
Disputes arising under "Workers' Compensation Act of
Colorado". (1) The director and administrative law judges employed by the office of
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administrative courts in the department of personnel shall have original jurisdiction to
hear and decide all matters arising under articles 40 to 47 of this title; except that the
following principles shall apply: A claimant in a workers' compensation claim shall have
the burden of proving entitlement to benefits by a preponderance of the evidence; the
facts in a workers' compensation case shall not be interpreted liberally in favor of either
the rights of the injured worker or the rights of the employer; a workers' compensation
case shall be decided on its merits; and a party seeking to modify an issue determined by a
general or final admission, a summary order, or a full order shall bear the burden of proof
for any such modification.
(2) The amendments made to subsection (1) of this section by Senate Bill 09-168,
enacted in 2009, are declared to be procedural and were intended to and shall apply to all
workers' compensation claims, regardless of the date the claim was filed.
8-43-202. Director may refer taking of evidence in cases to appropriate
officials of other states. The director, after notice to the parties in interest, may refer the
taking of any evidence to any commission, court, or board administering in another state
the compensation laws thereof, and such commission, court, or board of such other state,
after notifying the parties in interest of the time and place of holding such hearing, shall
hold hearings and take such evidence in the same manner and by the officers as
authorized by the laws of such state, and all such proceedings shall be certified and return
thereof made as prescribed by the director.
8-43-203. Notice concerning liability - notice to claimants - notice of rights
and claims process - rules. (1) (a) The employer or, if insured, the employer's insurance
carrier shall notify in writing the division and the injured employee or, if deceased, the
decedent's dependents within twenty days after a report is, or should have been, filed with
the division pursuant to section 8-43-101, whether liability is admitted or contested;
except that, for the purpose of this section, any knowledge on the part of the employer, if
insured, is not knowledge on the part of the insurance carrier. The employer or the
employer's insurance carrier may notify the division electronically. Unless exempted by
the director pursuant to rule because of a small number of filings or a showing of
financial hardship, beginning July 1, 2006, all notices of contest shall be filed
electronically. The rejection of an electronically filed notice by the division for a technical
error shall not affect the validity of the notice to the claimant. If the insurance carrier or
self-insured employer denies liability for the claim, the claimant may request an expedited
hearing on the issue of compensability if the application therefor is filed within forty-five
days after the date of mailing of the notice of contest. The director shall set any such
expedited matter for hearing within forty days after the date of the application, when the
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issue is liability for the disease or injury. The time schedule for such an expedited hearing
is subject to the extensions set forth in section 8-43-209. If a claimant elects not to request
an expedited hearing pursuant to this subsection (1), the time schedule for hearing the
matter shall be as set forth in section 8-43-209.
(b) The written notice given pursuant to this subsection (1) shall include a specific
reference to the claimant's obligations under section 8-42-113.5.
(1.5) (Deleted by amendment, L. 92, p. 1825, § 4, effective April 29, 1992.)
(2) (a) If such notice is not filed as provided in subsection (1) of this section, the
employer or, if insured, the employer's insurance carrier, as the case may be, may become
liable to the claimant, if the claimant is successful on the claim for compensation, for up
to one day's compensation for each day's failure to so notify; except that the employer or,
if insured, the employer's insurance carrier shall not be liable for more than the aggregate
amount of three hundred sixty-five days' compensation for failure to timely admit or deny
liability. Fifty percent of any penalty paid pursuant to this subsection (2) shall be paid to
the subsequent injury fund, created in section 8-46-101, and fifty percent to the claimant.
(b) (I) If the employer or, if insured, the employer's insurance carrier admits
liability, such notice shall specify the amount of compensation to be paid, to whom
compensation will be paid, the period for which compensation will be paid, and the
disability for which compensation will be paid, and payment thereon shall be made
immediately.
(II) (A) An admission of liability for final payment of compensation must include
a statement that this is the final admission by the workers' compensation insurance carrier
in the case, that the claimant may contest this admission if the claimant feels entitled to
more compensation, to whom the claimant should provide written objection, and notice to
the claimant that the case will be automatically closed as to the issues admitted in the
final admission if the claimant does not, within thirty days after the date of the final
admission, contest the final admission in writing and request a hearing on any disputed
issues that are ripe for hearing, including the selection of an independent medical
examiner pursuant to section 8-42-107.2 if an independent medical examination has not
already been conducted. If an independent medical examination is requested pursuant to
section 8-42-107.2, the claimant is not required to file a request for hearing on disputed
issues that are ripe for hearing until the division's independent medical examination
process is terminated for any reason. Any issue for which a hearing or an application for a
hearing is pending at the time that the final admission of liability is filed shall proceed to
the hearing without the need for the applicant to refile an application for hearing on the
issue. This information must also be included in the admission of liability for final
payment of compensation. The respondents have twenty days after the date of mailing of
the notice from the division of the receipt of the IME's report to file an admission or to
file an application for hearing. The claimant has thirty days after the date respondents file
the admission or application for hearing to file an application for hearing, or a response to
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the respondents' application for hearing, as applicable, on any disputed issues that are ripe
for hearing. The revised final admission, if any, must contain the statement required by
this subparagraph (II), and the provisions relating to contesting the revised final
admission apply. When the final admission is predicated upon medical reports, the reports
must accompany the final admission.
(B) The amendments made to sub-subparagraph (A) of this subparagraph (II) by
Senate Bill 09-168, enacted in 2009, are declared to be procedural and were intended to
and shall apply to all workers' compensation claims, regardless of the date the claim was
filed.
(c) No penalty may be assessed under this subsection (2) for failure to timely
admit or deny liability if a request for such penalty is filed more than seven years after the
alleged violation. The division shall retain original claim records filed with the division
for at least seven years after closure of the case. Seven years after a case is closed, the
records may only be used for reopening a settlement on the grounds of fraud or mutual
mistake of material fact.
(d) Once a case is closed pursuant to this subsection (2), the issues closed may
only be reopened pursuant to section 8-43-303. Upon proper showing in writing made
within said times fixed therefor, the director may extend the time for filing such
admission of liability or notice of contest, but not exceeding ten days at any one time.
Hearings may be set to determine any matter, but, if any liability is admitted, payments
shall continue according to admitted liability.
(3) In addition to any other notice required by this section, at the time that the
employer or, if insured, the employer's insurance carrier provides the notice required by
subsection (1) of this section, the employer or insurance carrier shall provide to the
claimant a brochure written in easily understood language, in a form developed by the
director after consultation with employers, insurance carriers, and representatives of
injured workers, describing the claims process and informing the claimant of his or her
rights. If the claimant has previously authorized the employer or, if insured, the
employer's insurance carrier to communicate with the claimant through electronic
transmission, the brochure may be sent to the claimant electronically. The brochure shall,
at a minimum, contain the following information:
(a) Who the claimant may contact with questions concerning the claim, the claims
process, and assistance with the claim, including:
(I) The insurance carrier or employer;
(II) The division and the web site for the division;
(III) The office of administrative courts and the web site for the office; and
(IV) An attorney hired at the expense of the claimant;
(b) The claimant's right to receive medical care for work-related injuries or
occupational diseases paid for by the employer or the employer's insurance carrier
including:
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(I) That most claimants have a right to choose from a list of at least two different
doctors;
(II) That most claimants have a right to change doctors one time within ninety
days after the injury and all claimants have the right to request a change of doctor at other
times under certain other circumstances;
(III) The claimant's doctor's right to refer the claimant to other medical providers
and specialists to provide the reasonable and necessary medical care that the claimant's
work-related injuries or illness require;
(IV) The claimant's right to discuss with his or her doctor who should be present
during a claimant's medical appointment, and the right to refuse to have a nurse case
manager employed on the claimant's claim present at the claimant's medical appointment;
(V) The claimant's right to see and have copies of all of the claimant's medical
records related to the medical care the claimant received for his or her work-related injury
or illness;
(VI) The claimant's right to seek medical care and medical opinions about the
claimant's work-related injury at the claimant's own expense;
(VII) The claimant's right to a medical examination by a doctor chosen by the
claimant or by the division at the claimant's expense;
(VIII) The claimant's right to a permanent impairment evaluation after the
claimant's treating doctors determine that the claimant has reached maximum medical
improvement; and
(IX) The claimant's right to be informed whether medical care after maximum
medical improvement will be provided and to receive reasonable continued medical care
if it is necessary to maintain maximum medical improvement;
(c) A description of the claimant's right to receive benefit payments, including the
claimant's right to receive:
(I) Wage replacement payments in the form of temporary total disability payments
or temporary partial disability payments;
(II) Permanent impairment benefits if the claimant is left with a permanent
impairment as a result of a work-related injury or disease;
(III) Disfigurement payments for permanent scarring or disfigurement caused by
the claimant's work-related injury or surgery required because of the claimant's workrelated injury; and
(IV) Mileage expenses for travel to and from work-related medical care and to and
from pharmacies to obtain medical prescriptions for work-related medical care;
(d) A description of how the claims process works, including:
(I) The claimant's right to file a claim for workers' compensation with the division
within two years after the date of the claimant's injury or occupational disease;
(II) The claimant's right to receive a general admission of liability or notice of
contest once the claim has been properly reported to the division;
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(III) The claimant's right to verify that the claimant's average weekly wage
payments for temporary total disability have been properly calculated by the claimant's
employer or the employer's insurance carrier;
(IV) The claimant's right to prehearings and hearings on disputed issues;
(V) The claimant's right to present evidence, testify, introduce medical and other
records, present witnesses, and make arguments at any hearing;
(VI) The claimant's right to object to and request a hearing on any final admission
of liability within thirty days after the mailing of the admission in order to retain certain
rights;
(VII) The claimant's right to challenge a finding of an impairment rating or
maximum medical improvement in a final admission of liability within thirty days after
the mailing of the admission in order to retain certain rights;
(VIII) The claimant's right to pursue penalties for violations of the law including
late payment of benefits or improper refusal to pay benefits;
(IX) The claimant's right, subject to certain requirements, to reopen a claim within
six years after the date of the injury or illness or within two years after the date of the last
receipt of medical or wage benefits; and
(X) A description of other rights conferred upon a claimant pursuant to law or
rule.
(4) Within fifteen days after the mailing of a written request for a copy of the
claim file, the employer or, if insured, the employer's insurance carrier or third-party
administrator shall provide to the claimant or his or her representative a complete copy of
the claim file that includes all medical records, pleadings, correspondence, investigation
files, investigation reports, witness statements, information addressing designation of the
authorized treating physician, and wage and fringe benefit information for the twelve
months leading up to the date of injury and thereafter, regardless of the format. If a
privilege or other protection is claimed for any materials, the materials must be detailed in
an accompanying privilege log.
8-43-204. Settlements - rules. (1) An injured employee may settle all or part of
any claim for compensation, benefits, penalties, or interest. If such settlement provides by
its terms that the employee's claim or award shall not be reopened, such settlement shall
not be subject to being reopened under any provisions of articles 40 to 47 of this title
other than on the ground of fraud or mutual mistake of material fact.
(2) Such a settlement shall be in writing and shall be signed by a representative of
the employer or insurer and signed and sworn to by the injured employee. For claims that
have a settlement amount of seventy-five thousand dollars or more, a written notice of the
settlement agreement shall be provided to the employer.
(3) The settlement shall be reviewed in person with the injured employee and
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approved in writing by an administrative law judge or the director of the division prior to
the finalization of such settlement. The settlement shall be filed with the division as a part
of the injured employee's permanent record.
(4) If an employee owes child support and a garnishment has been filed pursuant
to section 13-54.5-101, C.R.S., or the state child support enforcement agency has filed a
notice of administrative lien and attachment pursuant to section 26-13-122, C.R.S., with
the insurer or self-insured employer, all proceeds of any award, lump sum settlement, and
the indemnity portion of any structured settlement shall be subject to said garnishment or
administrative lien and attachment. Proceeds up to the amount of the garnishment or
administrative lien and attachment shall be paid as directed on the notice to the obligee or
to the state child support enforcement agency on behalf of the obligee to whom support is
owed.
(5) If an employee owes a debt for which a writ is issued as a result of a judgment
for fraudulently obtained public assistance, fraudulently obtained overpayments of public
assistance, or excess public assistance paid for which the recipient was ineligible and a
garnishment has been filed pursuant to section 13-54-104 or 13-54.5-101, C.R.S., with the
insurer or self-insured employer, all proceeds of any award, lump sum settlement, and the
indemnity portion of any structured settlement shall be subject to the garnishment.
Proceeds up to the amount of the garnishment shall be paid as directed by the county
department of social services responsible for administering the state public assistance
programs.
(6) To aid in settlement, the director shall review mortality tables from the United
States government and private industry and issue rules establishing a single life
expectancy table on July 1 in every even-numbered year, commencing July 1, 2010. The
director may adopt current mortality tables used by medicare. Nothing in this subsection
(6) shall be construed to limit the use of rated ages.
(7) Any lump sum payable as a full or partial settlement shall be paid to the
claimant or the claimant's attorney within fifteen calendar days after the date the executed
settlement order is received by the carrier or the noninsured or self-insured employer.
8-43-205. Mediation. (1) Any party involved in a claim arising under articles 40
to 47 of this title may request mediation services by filing a request for mediation services
with the division. However, mediation shall be entirely voluntary and shall not be
conducted without the consent of all parties to the claim. If a request for mediation
services is made after an application for a hearing has been filed, the administrative law
judge hearing the dispute shall approve, on motion of the parties, the submission of the
dispute to mediation prior to hearing the matter. An application for mediation services
shall be filed on a form prescribed by the director. Upon receiving the application for
mediation services, the director shall cause a mediation conference to occur within thirty
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days thereafter. At a mediation conference, the claimant may be represented by the
claimant, counsel, or any other agent of the claimant's choice. Mediators need not be
attorneys.
(2) Mediation proceedings conducted pursuant to this section shall be considered
to be settlement negotiations and are confidential. No admission, representation, or
statement made in the course of such mediation proceedings that is not otherwise subject
to discovery or otherwise obtainable under the procedures established in articles 40 to 47
of this title shall be admissible as evidence or subject to discovery under said articles. No
mediator who participates in mediation proceedings conducted pursuant to this section
shall be compelled or permitted to testify about any matter discussed or revealed during
such proceedings in any other proceeding under articles 40 to 47 of this title.
(3) The division shall develop a program to implement the provisions of this
section. Such program shall be a simple, nonadversarial method for the mediation of
disputes arising under articles 40 to 47 of this title. Such program shall provide for the use
of neutral mediators and the conduct of proceedings in an informal setting. The director
shall adopt rules and regulations to implement such program.
8-43-206. Settlement conference procedures. (1) Any employee, insurer, or
employer, if self-insured, involved in a dispute arising under articles 40 to 47 of this title
may request settlement conference services from the director or the office of
administrative courts in the department of personnel. However, such settlement
procedures are optional and entirely voluntary, and no such procedures shall be conducted
without the consent of both parties to the dispute.
(2) Settlement conferences shall be conducted by a settlement conference officer
who may be a prehearing administrative law judge or an administrative law judge in the
office of administrative courts in the department of personnel appointed pursuant to
section 24-30-1003, C.R.S., and assigned to hear disputes arising under articles 40 to 47
of this title. The parties may agree on the selection of a settlement conference officer;
except that such officer shall not be the administrative law judge who is regularly
assigned to hear the employee's case. If the parties fail to agree on the selection of such
officer, they may apply to the director or to the office of administrative courts for the
designation of a settlement conference officer who shall not be the administrative law
judge who is regularly assigned to hear the employee's case.
(3) Settlement conference proceedings conducted pursuant to this section shall be
considered to be settlement negotiations and are confidential. No admission,
representation, or statement made in the course of such settlement conference proceedings
that is not otherwise subject to discovery or otherwise obtainable under the procedures
established in articles 40 to 47 of this title shall be admissible as evidence or subject to
discovery under said articles. No settlement conference officer who participates in
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settlement conference proceedings conducted pursuant to this section shall be compelled
or permitted to testify about any matter discussed or revealed during such proceedings in
any other proceeding under articles 40 to 47 of this title.
(4) The executive director of the department of personnel shall adopt rules and
regulations to implement the provisions of this section. Such rules and regulations shall
be consistent with the provisions of section 8-43-204.
(5) The director of the division of workers' compensation shall adopt rules and
regulations to implement the provisions of this section. Such rules and regulations shall
be consistent with the provisions of section 8-43-204.
8-43-206.5. Right to binding arbitration for resolution of disputes under
articles 40 to 47. At any time prior to a hearing, the parties may agree to submit any
dispute under articles 40 to 47 of this title to binding arbitration. Said arbitration shall be
by an administrative law judge of the parties' choice or pursuant to arbitration procedures
as provided by the Colorado rules of civil procedure. Any arbitration award pursuant to
the provisions of this section shall be binding upon the parties, and no other procedure
contained in this article shall be available to the parties for the further review of such
award.
8-43-207. Hearings. (1) Hearings shall be held to determine any controversy
concerning any issue arising under articles 40 to 47 of this title. In connection with
hearings, the director and administrative law judges are empowered to:
(a) In the name of the division, issue subpoenas for witnesses and documentary
evidence which shall be served in the same manner as subpoenas in the district court;
(b) Administer oaths;
(c) Make evidentiary rulings;
(d) Limit or exclude cumulative or repetitive proof or examination;
(e) Upon written motion and for good cause shown, permit parties to engage in
discovery; except that permission need not be sought if each party is represented by an
attorney. The director or administrative law judge may rule on discovery matters and
impose the sanctions provided in the rules of civil procedure in the district courts for
willful failure to comply with permitted discovery.
(f) Upon written motion and for good cause shown, conduct prehearing
conferences for the settlement or simplification of issues;
(g) Dispose of procedural requests upon written motion or on written briefs or oral
arguments as determined appropriate;
(h) Control the course of the hearing and the conduct of persons in the hearing
room;
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(i) Upon written motion and for good cause shown, grant reasonable extensions of
time for the taking of any action contained in this article;
(j) Upon good cause shown, adjourn any hearing to a later date for the taking of
additional evidence;
(k) Issue orders;
(l) Appoint guardians ad litem, as appropriate, in matters involving dependents'
claims, and assess the reasonable fees and costs, therefore, from one or more of the
parties;
(m) Determine the competency of witnesses who testify in a workers'
compensation hearing or proceeding and the competency of parties that have entered into
settlement agreements pursuant to section 8-43-204. Such competency determinations
shall only be for the purpose of the particular workers' compensation proceeding.
(n) Dismiss all issues in the case except as to resolved issues and except as to
benefits already received, upon thirty days notice to all the parties, for failure to prosecute
the case unless good cause is shown why such issues should not be dismissed. For
purposes of this paragraph (n), it shall be deemed a failure to prosecute if there has been
no activity by the parties in the case for a period of at least six months.
(o) Set aside all or any part of any fee for medical services rendered pursuant to
articles 40 to 47 of this title if an administrative law judge determines after a hearing that,
based upon a review of the medical necessity and appropriateness of care provided
pursuant to said articles, any such fee is excessive or that the treatment rendered was not
necessary or appropriate under the circumstances. If all or part of any fee for medical
services is set aside pursuant to this paragraph (o), the provider of any such services shall
not contract with, bill, or charge the claimant for such fees and shall not attempt in any
way to collect any such charges from the claimant. No fee for medical services shall be
set aside pursuant to this paragraph (o) if the treatment was authorized in writing by the
insurer or employer.
(p) Impose the sanctions provided in the Colorado rules of civil procedure, except
for civil contempt pursuant to rule 107 thereof, for willful failure to comply with any
order of an administrative law judge issued pursuant to articles 40 to 47 of this title;
(q) Require repayment of overpayments.
8-43-207.5. Prehearing conferences. (1) Notwithstanding any provision of
articles 40 to 47 of this title to the contrary, at any time not less than ten days prior to the
formal adjudication on the record of any issue before the director or an administrative law
judge in the office of administrative courts, any party to a claim may request a prehearing
conference before a prehearing administrative law judge in the division of workers'
compensation for the speedy resolution of or simplification of any issues and to determine
the general readiness of remaining issues for formal adjudication on the record. The
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issues addressed in such prehearing conference shall be limited to: Ripeness of legal, but
not factual, issues for formal adjudication on the record before the director or an
administrative law judge in the office of administrative courts; discovery matters; and
evidentiary disputes. The filing of an application for hearing with the office of
administrative courts shall not be a prerequisite to a request for a prehearing conference
under this section. The director and the administrative law judges in the office of
administrative courts may also request a prehearing conference under this section.
(2) "Prehearing administrative law judge" means a qualified person appointed by
the director pursuant to section 8-47-101 to preside over prehearing conferences pursuant
to this section, to approve settlements pursuant to section 8-43-204, to conduct settlement
conferences pursuant to section 8-43-206, and to conduct arbitrations pursuant to section
8-43-206.5. Such prehearing administrative law judges shall have authority to: Order any
party to participate in a prehearing conference; issue interlocutory orders; issue subpoenas
in the name of the division for production of documentary evidence which shall be served
in the same manner as subpoenas in the district court; make evidentiary rulings; permit
parties to cause depositions to be taken; determine the competency of any party to a claim
to enter into a settlement agreement; and strike the application for hearing of a party for
failure to comply with any provision of this section.
(3) An order entered by a prehearing administrative law judge shall be an order of
the director and binding on the parties. Such an order shall be interlocutory. Prehearing
conferences need not be held on the record; however, any party to a claim may request in
advance that a record be made of the prehearing conference, either taken verbatim by a
court reporter provided and paid for by the requesting party or electronically recorded by
the division.
(4) The director shall adopt rules and regulations as may be necessary to
implement the provisions of this section.
8-43-208. Investigations. (1) For the purpose of making any investigation with
regard to any matter contemplated by the provisions of articles 40 to 47 of this title, the
director shall have power to appoint, with the approval of the executive director by an
order in writing, any competent person as an agent whose duties shall be prescribed in
such order.
(2) (Deleted by amendment, L. 94, p. 1876, § 7, effective June 1, 1994.)
(3)
The director may conduct any number of such investigations
contemporaneously through different agents.
8-43-209. Time schedule for hearings - establishment. (1) Hearings shall
commence within one hundred days after the hearing is set pursuant to section 8-43-211
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(2). One extension of time to commence the hearing of no more than sixty days shall be
granted by an administrative law judge upon agreement of the parties.
(2) One extension of time to commence the hearing of no more than sixty days
may be granted by an administrative law judge upon written request by any party to the
case and for good cause shown, in the following cases: When pulmonary lung disease,
cancer, cardiovascular disease, or stroke is alleged as the cause of the disability; when the
subsequent injury fund is a party; when permanent total disability is alleged; upon
agreement of the parties; or when compensability of the injury is contested. In all other
cases, extensions of time to commence the hearing of no more than twenty days may be
granted by an administrative law judge upon written request by any party to the case and
for good cause shown.
(3) Once the hearing is commenced, the administrative law judge may, for good
cause shown, continue the hearing to a date certain to take additional testimony, to file an
additional medical report, to file the transcript of a deposition, or to file a position
statement. Except upon the agreement of all parties or for good cause shown, a
continuance to complete a hearing shall not exceed thirty calendar days.
8-43-210. Evidence. Notwithstanding section 24-4-105, C.R.S., the Colorado
rules of evidence and requirements of proof for civil nonjury cases in the district courts
shall apply in all hearings; except that medical and hospital records, physicians' reports,
vocational reports, and records of the employer are admissible as evidence and can be
filed in the record as evidence without formal identification if relevant to any issue in the
case. Depositions may be substituted for testimony upon good cause shown. Convictions
for alcohol-related offenses, pursuant to titles 18 and 42, C.R.S., the transcripts of
proceedings leading to such convictions, and the court files relating to such convictions
may be admissible in all hearings conducted under the "Workers' Compensation Act of
Colorado", articles 40 to 47 of this title, where such conviction resulted from the same
occurrence, accident, or injury occurring on the job that forms the basis for the workers'
compensation claim. All relevant medical records, vocational reports, expert witness
reports, and employer records shall be exchanged with all other parties at least twenty
days prior to the hearing date.
8-43-211. Notice - request for hearing. (1) At least thirty days prior to any
hearing, the office of administrative courts in the department of personnel shall send
written notice to all parties by regular or electronic mail or by facsimile. The notice shall:
(a) Give the time, date, and place of the hearing;
(b) Inform the parties that they must be prepared to present their evidence
concerning the issues to be heard;
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(c) Inform the parties that they have the right to be represented by an attorney or
other person of their choice at the hearing.
(2) Hearings shall be set by the office of administrative courts in the department
of personnel within eighty to one hundred days after any of the following occur:
(a) The director sets any issue for hearing. The director may expedite the hearing
for good cause shown.
(b) Any party requests a hearing on issues ripe for adjudication by filing a written
request with the office of administrative courts in the department of personnel on forms
provided by the office. The request shall be mailed to all parties at the time they are filed
with the office of administrative courts. After the filing of the requests, the office of
administrative courts in the department of personnel shall set the matter for hearing
insofar as is practicable in the order in which requests are received by the office of
administrative courts.
(c) Any party or the attorney of such party sends notice to set a hearing on issues
ripe for adjudication to opposing parties or their attorneys. The director of the office of
administrative courts shall determine the place and time or times during which settings
can be made. At such setting, the party requesting the setting shall submit a completed
request for hearing form. Any notice to set shall be mailed to opposing parties at least ten
days prior to the setting date.
(d) If an attorney requests a hearing or files a notice to set a hearing on an issue
that is not ripe for adjudication at the time the request or filing is made, the attorney may
be assessed the reasonable attorney fees and costs of the opposing party in preparing for
the hearing or setting. The requesting party must prove its attempt to have an unripe issue
stricken by a prehearing administrative law judge to request fees or costs. Requested fees
or costs incurred after a prehearing conference may only be awarded if they are directly
caused by the listing of the unripe issue.
(e) Except in claims in which compensability is contested or a hearing is requested
in response to a final admission of liability or to overcome a conclusion in a divisionsponsored independent medical examination, the party filing an application for a hearing
shall certify on the application that the party attempted to resolve with the other parties all
issues listed in the application for a hearing.
8-43-212. Compulsion of testimony. When any person upon whom a subpoena
issued in the name of the division has been served fails or refuses to appear, the party who
requested the subpoena may apply to the district court in the county in which the person
served resides for an order compelling attendance before the division of the witness or the
production of the documents subpoenaed. Violation of such an order shall be treated as
contempt of the court issuing the order.
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8-43-213. Transcripts. (1) All testimony and argument of all hearings held
pursuant to section 8-43-207 concerning any issue arising under articles 40 to 47 of this
title shall either be taken verbatim by a hearing reporter or shall be electronically recorded
by the division.
(2) Any party in interest may order a transcript at any time from a hearing
reporter, a court reporter provided by any party, or, if the hearing is recorded, from the
division. For purposes of a petition to review, a transcript shall be all testimony taken that
is relevant to the issue being appealed. In the preparation of transcripts, hearing reporters
shall give preference to transcripts as part of the record in a petition to review; except that
all transcripts shall be prepared and filed with the office of administrative courts within
twenty-five working days after the date they were ordered. Hearing reporters shall be paid
for transcripts and copies at the rate set by the supreme court for reporters in courts of
record. If a court reporter is unable to meet the time limit specified in this section, any
party, at its own expense, or the administrative law judge may contract with another court
reporter to ensure the timely preparation of transcripts.
(3) Upon a satisfactory showing to the director in writing that a party petitioning
to review is indigent and unable to pay for the preparation of the transcript, the director
may order a transcript to be prepared at the division's expense, and, if the transcript was
prepared by a hearing reporter, the division shall pay the hearing reporter the fee therefor.
(4) When a transcript is ordered as part of the record on a petition to review, the
original of the transcript shall be filed with the division where it shall be available to all
parties in interest.
8-43-214. Transcript certified - evidence. A transcribed copy of the evidence
and proceedings, or any specific part thereof, of any investigation or hearing which was
prepared at the direction of the director shall be certified by the hearing reporter, or the
division if the hearing was recorded, to be a true and correct transcript of the testimony on
the investigation or hearing of a particular witness, or a specific part thereof, carefully
compared to original notes or to the original recording, and to be a correct statement of
the evidence and proceedings had on such investigation or hearing. A transcribed copy
which is so certified may be received as evidence by the director, the panel, and any court
with the same effect as if the person who prepared the transcript were present and
testified to the facts so certified.
8-43-215. Orders. (1) No more than fifteen working days after the conclusion of
a hearing, the administrative law judge or director shall issue a written order allowing or
denying said claim. Such written order shall either be a summary order or a full order. A
full order shall contain specific findings of fact and conclusions of law. If compensation
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benefits are granted, such written order shall specify the amounts thereof, the disability
for which compensation benefits are granted, by whom and to whom such benefits shall
be paid, and the method and time of such payments. A certificate of mailing and a copy of
such written order shall be served by regular or electronic mail or by facsimile to each of
the parties in interest or their representatives, the original of which shall be a part of the
records in said case. If an administrative law judge has issued a summary order, a party
dissatisfied with the order may make a written request for a full order within seven
working days after the date of mailing of the summary order. The request shall be a
prerequisite to review under section 8-43-301. If a request for a full order is made, the
administrative law judge shall have ten working days after receipt of the request to issue
the order. A full order shall be entered as the final award of the administrative law judge
or director subject to review as provided in this article.
(2) Repealed.
8-43-216. Frivolous claims for compensation - repeal. (Repealed)
8-43-217. Claims management - legislative declaration. The general assembly
hereby finds, determines, and declares that active management of workers' compensation
claims should be practiced in order to expedite and simplify the processing of claims,
reduce litigation, and better serve the public.
8-43-218. Authority of director. (1) The director shall have authority to appoint
claims managers to review, audit, and close cases, to educate, inform, and assist the
public as to the workers' compensation system, to promote speedy and uncomplicated
problem resolution of workers' compensation matters, and to otherwise manage claims.
(2) The director may require any party to a workers' compensation claim to attend,
cooperate, and comply with the efforts of claims managers in managing claims or
complaints received by the division.
(3) Any party willfully refusing to cooperate or comply with claims management
efforts of the division shall be subject to the penalty provisions set forth in section 8-43304 and to the denial or vacation of a hearing date.
(4) Any violation of any provision of this section shall be cause for the rejection
of an application for hearing or a response thereto until such time as the violation is
cured.
8-43-219. Not a limitation on rights or privileges. Nothing in section 8-43-217
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or 8-43-218 shall be construed to limit any party's rights or privileges as provided by law.
8-43-220. Injured worker exit survey. (1) Upon closure of a claim, each insurer
shall survey the claimant or, if deceased, the decedent's dependents regarding the
claimant's satisfaction with the insurer for claims that are reported to the division pursuant
to section 8-43-101. The survey shall be conducted in a form and manner as prescribed by
the director. The director shall develop the form and manner of the survey with input
from insurers that provide workers' compensation policies pursuant to articles 40 to 55 of
this title, and with the least administrative burden as possible. The survey shall include
questions regarding courtesy, promptness of medical care, promptness of handling the
claim, promptness of resolving the claim, and overall satisfaction with the experience
with the insurer. An employer or an insurer shall not take disciplinary action or otherwise
retaliate against a claimant or his or her dependents for completing the survey.
(2) The insurer shall report the survey results annually to the division. The director
shall post the results of the surveys on the division's web site.
PART 3
REVIEW PROCEDURES
8-43-301. Petitions to review. (1) Any order, corrected order, or supplemental
order is final unless a petition to review or appeal has been filed in accordance with this
article.
(2) Any party dissatisfied with an order that requires any party to pay a penalty or
benefits or denies a claimant any benefit or penalty may file a petition to review with the
division, if the order was entered by the director, or at the Denver office of the office of
administrative courts in the department of personnel, if the order was entered by an
administrative law judge, and serve the same by mail on all the parties. The petition shall
be filed within twenty days after the date of the certificate of mailing of the order, and,
unless so filed, the order shall be final. The petition to review may be filed by mail, and
shall be deemed filed upon the date of mailing, as determined by the certificate of
mailing, if the certificate of mailing indicates that the petition to review was mailed to the
division or to the Denver office of the office of administrative courts in the department of
personnel, as appropriate. The petition to review shall be in writing and shall set forth in
detail the particular errors and objections of the petitioner. A petitioner shall, at the same
time, order any transcript relied upon for the petition to review, arrange with the hearing
reporter to pay for the same, and notify opposing parties of the transcript ordered.
Opposing parties shall have twenty days after the date of the certificate of mailing of the
petition to review to order any other transcript not ordered by the petitioner and arrange
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with the hearing reporter to pay for the same.
(3) If transcripts of hearings are ordered as part of the record in a petition to
review, the director or administrative law judge cannot rule on the petition until the
transcripts are lodged with the division.
(4) When the record upon which a petition to review has been filed is complete,
the parties shall be notified in writing. The petitioner shall have twenty days after the date
of the certificate of mailing of the notice to file a brief in support of the petition. The
opposing parties shall have twenty days after the date of the certificate of mailing of the
petitioner's brief to file briefs in opposition thereto. After the briefs are filed or the time
for filing has run, the director or administrative law judge shall have thirty days to enter a
supplemental order or transmit the file to the industrial claim appeals office for review.
(5) In ruling on a petition to review, the director or administrative law judge may
issue a supplemental order labeled as such limited to the matters raised in the petition to
review, and, as to those matters, the director or administrative law judge may amend or
alter the original order or set the matter for further hearing. In any event, if it has not
already been done, the administrative law judge or director, following a petition to review
an order, shall make findings of fact and conclusions of law necessary to support such
order.
(6) A party dissatisfied with a supplemental order may file a petition for review by
the panel. The petition shall be filed with the division if the supplemental order was
issued by the director or at the Denver office of the office of administrative courts in the
department of personnel if the supplemental order was issued by an administrative law
judge. The petition shall be filed within twenty days after the date of the certificate of
mailing of the supplemental order. The petition shall be in writing, shall set forth in detail
the particular errors and objections relied upon, and shall be accompanied by a brief in
support thereof. The petition and brief shall be mailed by petitioner to all other parties at
the time the petition is filed. All parties, except the petitioner, shall be deemed opposing
parties and shall have twenty days after the date of the certificate of mailing of the
petition and brief to file with the division or the Denver office of the office of
administrative courts, as appropriate, briefs in opposition to the petition.
(7) When any petition for review by the panel is filed, the division or the Denver
office of the office of administrative courts shall, when all briefs are submitted to the
division or the Denver office of the office of administrative courts or within fifteen days
after the date briefs were due, certify and transmit the record to the industrial claim
appeals office along with the petitions and briefs. The division or the Denver office of the
office of administrative courts, as appropriate, shall simultaneously send notice to the
parties including the date that the record has been transmitted to the industrial claim
appeals office.
(8) The industrial claim appeals office shall have sixty days after receipt of the
certified record to enter its order. The panel may issue a summary order affirming the
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order of the administrative law judge or director. The panel may correct, set aside, or
remand any order but only upon the following grounds: That the findings of fact are not
sufficient to permit appellate review; that conflicts in the evidence are not resolved in the
record; that the findings of fact are not supported by the evidence; that the findings of fact
do not support the order; or that the award or denial of benefits is not supported by
applicable law. If the findings of fact entered by the director or administrative law judge
are supported by substantial evidence, they shall not be altered by the panel.
(9) The panel shall have the power to issue such procedural orders as may be
necessary to carry out its appellate review under subsection (7) of this section, including
but not limited to, orders concerning completion of the record and filing of briefs. In
those cases where the parties file a stipulated motion requesting that consideration of the
appeal be deferred pending ongoing settlement negotiations, the panel may extend the
time for entry of its order up to a maximum of thirty days.
(10) The panel's order shall be mailed to all parties of record. Any party
dissatisfied with the panel's order shall have twenty days after the date of the certificate of
mailing of such order to commence an action for judicial review in the court of appeals.
(11) If the panel has failed to enter its order within sixty days of the receipt of the
certified record, the order of the director or administrative law judge shall be deemed the
order of the panel and final unless, within thirty days after the end of the sixty-day period,
the petitioner commences an action for judicial review in the court of appeals. If the panel
has not acted on the sixtieth day, the industrial claim appeals office shall send a written
notice to all parties stating that the parties have thirty days after the date of the certificate
of mailing of the notice to commence such an action.
(12) If a petition to review is filed, a hearing may be held and orders entered on
any other issue in the case during the pendency of the petition to review. If the order
which is under petition to review concerns compensability, orders entered on these later
issues are final and appealable when entered, but not enforceable until the review of the
order on compensability is completed.
(13) If the order which is under petition to review does not concern
compensability, but concerns the respective liability of two or more employers or
insurance carriers, and the injury or illness was found compensable in a hearing held
pursuant to section 8-43-215, the employer or insurance carrier found liable by the
director or administrative law judge shall pay benefits in accordance with the order under
review until the review process is completed, at which time it shall be reimbursed by the
other employer or carrier if reimbursement is necessary to comply with the final order.
(14) The signature of an attorney on a petition to review or brief in support thereof
constitutes a certificate by the attorney that such attorney has read the petition or brief;
that, to the best of the attorney's knowledge, information, or belief formed after
reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good
faith argument for the extension, modification, or reversal of existing law, and that it is
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not interposed for any improper purpose, such as to harass, cause delay, or unnecessarily
increase the cost of litigation. If a petition or brief is signed in violation of this subsection
(14), the director, the administrative law judge, or the panel shall award reasonable
attorney fees and costs to the party incurring the fees and costs as a result of the improper
actions.
8-43-302. Corrected orders. (1) The director, an administrative law judge, or the
panel may issue a corrected order:
(a) At any time within thirty days after the entry of an order, to correct any clerical
errors in the order. Clerical errors are grammatical or computational errors.
(b) At any time within thirty days of the entry of an order, to correct any errors
caused by mistake or inadvertence.
(2) Any order corrected for clerical error, mistake, or inadvertence shall be labeled
"corrected order" and mailed by the division. Any corrected order may be appealed in the
manner provided in this article for any other order.
8-43-303. Reopening. (1) At any time within six years after the date of injury, the
director or an administrative law judge may, after notice to all parties, review and reopen
any award on the ground of fraud, an overpayment, an error, a mistake, or a change in
condition, except for those settlements entered into pursuant to section 8-43-204 in which
the claimant waived all right to reopen an award; but a settlement may be reopened at any
time on the ground of fraud or mutual mistake of material fact. Upon a prima facie
showing that the claimant received overpayments, the award shall be reopened solely as
to overpayments and repayment shall be ordered. In cases involving the circumstances
described in section 8-42-113.5, recovery of overpayments shall be ordered in accordance
with said section. If an award is reopened on grounds of an error, a mistake, or a change
in condition, compensation and medical benefits previously ordered may be ended,
diminished, maintained, or increased. No such reopening shall affect the earlier award as
to moneys already paid except in cases of fraud or overpayment. Any order entered under
this subsection (1) shall be subject to review in the same manner as other orders.
(2) (a) At any time within two years after the date the last temporary or permanent
disability benefits or dependent benefits excluding medical benefits become due or
payable, the director or an administrative law judge may, after notice to all parties, review
and reopen an award on the ground of fraud, an overpayment, an error, a mistake, or a
change in condition, except for those settlements entered into pursuant to section 8-43204 in which the claimant waived all right to reopen an award; but a settlement may be
reopened at any time on the ground of fraud or mutual mistake of material fact. Upon a
prima facie showing that the claimant received overpayments, the award shall be
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reopened solely as to overpayments and repayment shall be ordered. In cases involving
the circumstances described in section 8-42-113.5, recovery of overpayments shall be
ordered in accordance with said section. If an award is reopened under this paragraph (a)
on grounds of an error, a mistake, or a change in condition, compensation and medical
benefits previously ordered may be ended, diminished, maintained, or increased. No such
reopening shall affect the earlier award as to moneys already paid except in cases of fraud
or overpayment. Any order entered under this paragraph (a) shall be subject to review in
the same manner as other orders.
(b) At any time within two years after the date the last medical benefits become
due and payable, the director or an administrative law judge may, after notice to all
parties, review and reopen an award only as to medical benefits on the ground of an error,
a mistake, or a change in condition, except for those settlements entered into pursuant to
section 8-43-204 in which the claimant waived all right to reopen an award; but a
settlement may be reopened at any time on the ground of fraud or mutual mistake of
material fact. If an award is reopened under this paragraph (b), medical benefits
previously ordered may be ended, diminished, maintained, or increased. No such
reopening shall affect the earlier award as to moneys already paid. Any order entered
under this paragraph (b) shall be subject to review in the same manner as other orders.
(3) In cases where a claimant is determined to be permanently totally disabled, any
such case may be reopened at any time to determine if the claimant has returned to
employment. If the claimant has returned to employment and is earning in excess of four
thousand dollars per year or has participated in activities which indicate that the claimant
has the ability to return to employment, such claimant's permanent total disability award
shall cease and the claimant shall not be entitled to further permanent total disability
benefits as a result of the injury or occupational disease which led to the original
permanent total disability award. Any subsequent permanent partial disability benefits
awarded for the same injury or occupational disease shall be decreased by the amount of
permanent total disability benefits previously received by the employee.
(4) The party attempting to reopen an issue or claim shall bear the burden of proof
as to any issues sought to be reopened.
8-43-304. Violations - penalty - offset for benefits obtained through fraud rules. (1) Any employer or insurer, or any officer or agent of either, or any employee, or
any other person who violates any provision of articles 40 to 47 of this title, or does any
act prohibited thereby, or fails or refuses to perform any duty lawfully enjoined within the
time prescribed by the director or panel, for which no penalty has been specifically
provided, or fails, neglects, or refuses to obey any lawful order made by the director or
panel or any judgment or decree made by any court as provided by said articles shall be
subject to such order being reduced to judgment by a court of competent jurisdiction and
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shall also be punished by a fine of not more than one thousand dollars per day for each
such offense, to be apportioned, in whole or part, at the discretion of the director or
administrative law judge, between the aggrieved party and the workers' compensation
cash fund created in section 8-44-112 (7) (a); except that the amount apportioned to the
aggrieved party shall be a minimum of fifty percent of any penalty assessed.
(1.5) (a) (I) An insurer who knowingly or repeatedly violates any provision of
articles 40 to 47 of this title shall be subject to a fine as determined by the director. If
necessary, the director may conduct a hearing or may refer the matter to the office of
administrative courts for the entry of findings of fact. The director shall promulgate rules
that specify, with respect to an insurer's willful or repeated violations that are subject to
this subsection (1.5):
(A) The circumstances pursuant to which the director may issue an order imposing
a fine; and
(B) Criteria for determining the amount of the fine.
(II) If the division determines, as part of a compliance audit of an insurer or selfinsured pool, that an injury or occupational disease was not reported to the division within
the time specified in sections 8-43-101 and 8-43-103 because the insurer or self-insured
pool did not have notice or knowledge of the injury, occupational disease, or fatality
within a period of time that would allow the information to be reported to the division
within the time specified in sections 8-43-101 and 8-43-103, the director shall not impose
a fine for late reporting under this subsection (1.5). The director may impose a fine under
this subsection (1.5) for late reporting under sections 8-43-101 and 8-43-103 as part of
findings from a compliance audit if the director finds that the late reporting constituted a
knowing or repeated pattern of noncompliance with the reporting requirements of
sections 8-43-101 and 8-43-103 and was not caused by the insurer or self-insured pool's
lack of notice or knowledge of the injury, occupational disease, or fatality within a period
of time that would allow the information to be reported to the division within the time
specified in sections 8-43-101 and 8-43-103.
(b) Fines imposed pursuant to this subsection (1.5) shall be transmitted to the state
treasurer, who shall credit seventy-five percent of such fines to the general fund and
twenty-five percent to the workers' compensation cash fund, created in section 8-44-112.
(2) An insurer or self-insured employer may take a credit or offset of previously
paid workers' compensation benefits or payments against any further workers'
compensation benefits or payments due a worker when the worker admits to having
obtained the previously paid benefits or payments through fraud, or a civil judgment or
criminal conviction is entered against the worker for having obtained the previously paid
benefits through fraud. Benefits or payments obtained through fraud by a worker shall
not be included in any data used for rate-making or individual employer rating or
dividend calculations by any insurer or by Pinnacol Assurance.
(3) The director and each administrative law judge shall report to the division each
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time a penalty is imposed pursuant to this section. Each such report shall include the
amount of the penalty, the name of the administrative law judge awarding the penalty, if
applicable, and the name of the offending party.
(4) In any application for hearing for any penalty pursuant to subsection (1) of this
section, the applicant shall state with specificity the grounds on which the penalty is being
asserted. After the date of mailing of such an application, an alleged violator shall have
twenty days to cure the violation. If the violator cures the violation within such twentyday period, and the party seeking such penalty fails to prove by clear and convincing
evidence that the alleged violator knew or reasonably should have known such person
was in violation, no penalty shall be assessed. The curing of the violation within the
twenty-day period shall not establish that the violator knew or should have known that
such person was in violation.
(5) A request for penalties shall be filed with the director or administrative law
judge within one year after the date that the requesting party first knew or reasonably
should have known the facts giving rise to a possible penalty.
8-43-304.5. Penalties in rate-making. For purposes of rate-making under
sections 10-4-401, 10-4-402, and 10-4-403, C.R.S., insurers shall not include, nor shall
the insurance commissioner consider, any penalties paid under section 8-43-304 or any
damages awarded in suits founded upon breach of duty in handling a claim for
compensation under section 8-41-102.
8-43-305. Each day separate offense. Every day during which any employer or
insurer, or officer or agent of either, or any employee, or any other person fails to comply
with any lawful order of an administrative law judge, the director, or the panel or fails to
perform any duty imposed by articles 40 to 47 of this title shall constitute a separate and
distinct violation thereof. In any action brought to enforce the same or to enforce any
penalty provided for in said articles, such violation shall be considered cumulative and
may be joined in such action.
8-43-306. Collection of fines, penalties, and overpayments. (1) A certified
copy of any final order of the director or an administrative law judge ordering the
payment of any penalty or repayment of overpayments pursuant to articles 40 to 47 of this
title may be filed with the clerk of the district court of any county in this state at any time
after the period of time provided by articles 40 to 47 of this title for appeal or seeking
review of the order has passed without appeal or review being sought or, if appeal or
review is sought, after the order has been finally affirmed and all appellate remedies and
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all opportunities for review have been exhausted. The party filing the order shall at the
same time file a certificate to the effect that the time for appeal or review has passed
without appeal or review being undertaken or that the order has been finally affirmed with
all appellate remedies and all opportunities for review having been exhausted. The clerk
of the district court shall record the order and the filing party's certificate in the judgment
book of said court and entry thereof made in the judgment docket, and it shall thenceforth
have all the effect of a judgment of the district court, and execution may issue thereon out
of said court as in other cases. Any such order may be filed by and in the name of the
director or by and in the name of the party in the worker's compensation action who was
injured by the violation of any provision of articles 40 to 47 of this title or who was found
to be entitled to repayment of overpayments under said articles.
(2) All such penalties when collected shall be payable to the division and
transmitted through the state treasurer for credit to the subsequent injury fund, created in
section 8-46-101.
8-43-307. Appeals to court of appeals. (1) The final order of the director or the
panel shall constitute the final order of the division. Any person in interest, including
Pinnacol Assurance, being dissatisfied with any final order of the division, may
commence an action in the court of appeals against the industrial claim appeals office as
defendant to modify or vacate any such order on the grounds set forth in section 8-43308.
(2) All such actions shall have precedence over any civil cause of a different
nature pending in such court, and the court of appeals shall always be deemed open for
the trial thereof, and such actions shall be tried and determined by the court of appeals in
the manner provided for other civil actions.
(3) (Deleted by amendment, L. 95, p. 235, § 3, effective April 17, 1995.)
(4) In any case before the court of appeals pursuant to this section, the court may
apply the sanctions of rule 38 of the Colorado appellate rules if the court finds such
application to be appropriate.
8-43-308. Causes for setting aside award. Upon hearing the action, the court of
appeals may affirm or set aside such order, but only upon the following grounds: That the
findings of fact are not sufficient to permit appellate review; that conflicts in the evidence
are not resolved in the record; that the findings of fact are not supported by the evidence;
that the findings of fact do not support the order; or that the award or denial of benefits is
not supported by applicable law. If the findings of fact entered by the director or
administrative law judge are supported by substantial evidence, they shall not be altered
by the court of appeals.
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8-43-309. Actions in court tried within thirty days. Any such action
commenced in the court of appeals to set aside or modify any order shall be heard within
thirty days after issue shall be joined, unless continued on order of the court for good
cause shown. No continuance shall be for longer than thirty days at one time.
8-43-310. Error disregarded unless prejudicial. The appeal shall be upon the
record returned to the court by the industrial claim appeals office. Upon the hearing of
any such action, the court shall disregard any irregularity or error of the director or the
panel unless it affirmatively appears that the party complaining was damaged thereby.
8-43-311. Court record transmitted to industrial claim appeals office when. It is the duty of the clerk of the court of appeals, without order of court or
application of the panel, to transmit the record in any case to the industrial claim appeals
office within twenty-five days after the order or judgment of the court unless in the
meantime further appellate review is granted by the supreme court. If the supreme court
grants further appellate review, the clerk shall return the record immediately upon receipt
of remittitur from the supreme court, unless the order of the supreme court requires
further action by the court of appeals, and then within twenty-five days after such further
action.
8-43-312. Court may remand case or order entry of award. Upon setting aside
of any order, the court may recommit the controversy and remand the record in the case
for further hearing or proceedings by the director, administrative law judge, or panel, or it
may order entry of a proper award upon the findings as the nature of the case shall
demand. In no event shall such order for award be for a greater amount of compensation
than allowed by articles 40 to 47 of this title, or in any manner conflict with the
provisions thereof.
8-43-313. Summary review by supreme court. Any affected party dissatisfied
with the decision of the court of appeals may seek review by writ of certiorari in the
supreme court. If the supreme court reviews the judgment of the court of appeals, such
review shall be limited to a summary review of questions of law. Any such action shall be
advanced upon the calendar of the supreme court, and a final decision shall be rendered
within sixty days after the date the supreme court grants further appellate review. The
director, an administrative law judge, the industrial claim appeals office, or any other
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aggrieved party shall not be required to file any undertaking or other security upon review
by the supreme court.
8-43-314. Fees - costs - duty of district attorneys and attorney general. No fee
shall be charged by the clerk of any court for the performance of any official service
required by articles 40 to 47 of this title. On proceedings to review any order or award,
costs as between the parties shall be allowed in the discretion of the court, but no costs
shall be taxed against said director or industrial claim appeals office. In any action for the
review of any order or award and upon any review thereof by the supreme court, it is the
duty of the district attorney in the county wherein said action is pending, or of the attorney
general if requested by the director or industrial claim appeals office, to appear on behalf
of either or both, whether any other party defendant should have appeared or been
represented in the action.
8-43-315. Witnesses and testimony - mileage - fees - costs. The director or any
agent, deputy, or administrative law judge of the division has the power to issue
subpoenas to compel the attendance of witnesses or parties and the production of books,
papers, or records and to administer oaths. Any person who serves a subpoena shall
receive the same fee as the sheriff. Each witness who is subpoenaed on behalf of the
director and who appears in obedience thereto shall receive for attendance the fees and
mileage provided for witnesses in civil cases in the district court, which shall be audited
and paid from the state treasury in the same manner as other expenses are audited and
paid, upon the presentation of a proper voucher approved by the director. The director has
the discretion to assess the cost of attendance and mileage of witnesses subpoenaed by
either party to any proceeding against the other party to such proceeding when, in the
director's judgment, the necessity of subpoenaing such witnesses arises out of the raising
of any incompetent, irrelevant, or sham issues by such other party.
8-43-316. Appearance by officer for closely held corporation. An officer of a
closely held Colorado corporation as defined in section 13-1-127 (1) (a), C.R.S., may
appear on behalf of any such corporation, which has obtained coverage as required by
articles 40 to 47 of this title in proceedings authorized under the "Workers' Compensation
Act of Colorado", articles 40 to 47 of this title, where the amount at issue does not exceed
ten thousand dollars, except in proceedings before the industrial claim appeals office
under this part 3, appeals to the court of appeals under section 8-43-307, and summary
reviews by the supreme court under section 8-43-313.
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8-43-317. Service of documents. All documents that are required to be
exchanged under articles 40 to 47 of this title shall be transmitted or served in the same
manner or by the same means to all required recipients.
PART 4
ENFORCEMENT AND PENALTIES
8-43-401. District attorney or attorney of division to act for director or office
- penalties for failure of insurer to pay benefits. (1) Upon the request of the director or
the industrial claim appeals office, the district attorney of any district or any attorney-atlaw employed by the division shall institute and prosecute the necessary actions or
proceedings for the enforcement of any of the provisions of articles 40 to 47 of this title,
or any award or order of the director, an administrative law judge, or the industrial claim
appeals office, or for the recovery of any money due to Pinnacol Assurance, or any
penalty provided in said articles, and shall defend in like manner all suits, actions, or
proceedings brought against the director, an administrative law judge, or the industrial
claim appeals office.
(2) (a) After all appeals have been exhausted or in cases where there have been no
appeals, all insurers and self-insured employers shall pay benefits within thirty days after
any benefits are due. If any insurer or self-insured employer knowingly delays payment of
medical benefits for more than thirty days or knowingly stops payments, such insurer or
self-insured employer shall pay a penalty of eight percent of the amount of wrongfully
withheld benefits; except that no penalty is due if the insurer or self-insured employer
proves that the delay was the result of excusable neglect. If any insurer or self-insured
employer willfully withholds permanent partial disability benefits within thirty days of
when due, the insurer or self-insured employer shall pay a penalty to the division of ten
percent of the amount of such benefits due. The penalties shall be apportioned, in whole
or part, at the discretion of the director or administrative law judge, among the aggrieved
party, the medical services provider, and the workers' compensation cash fund created in
section 8-44-112 (7) (a).
(b) All moneys collected as penalties by the division pursuant to this subsection
(2) shall be transmitted to the state treasurer who shall credit the same to the workers'
compensation cash fund created in section 8-44-112.
8-43-401.5. Financial incentives to deny or delay claim or medical care prohibition - penalties. (1) No insurer, employee or contractor of an insurer, selfinsured employer, employee or contractor of a self-insured employer, health care
provider, or employee or contractor of a health care provider treating an injured worker
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under the provisions of articles 40 to 47 of this title shall pay or receive any form of
financial remuneration that is based on any of the following:
(a) The number of days to maximum medical improvement;
(b) The rate of claims approval or denial;
(c) The number of medical procedures, diagnostic procedures, or treatment
appointments approved; or
(d) Any other criteria designed or intended to encourage a violation of any
provision of articles 40 to 47 of this title.
(2) (a) Payment of remuneration in violation of this section constitutes an unfair
act or practice in the business of insurance, and the insurer or self-insured employer who
pays or directs the payment of the remuneration shall be subject to penalties in accordance
with part 11 of article 3 of title 10, C.R.S.
(b) In addition to, or as an alternative to, any penalties imposed pursuant to
paragraph (a) of this subsection (2), an insurer or self-insured employer who is found to
have violated subsection (1) of this section may be subject to fines as determined by the
director pursuant to section 8-43-304 (1.5).
(3) Nothing in this section:
(a) Restricts or limits the ability of a claims adjuster or employee or contracted
claims personnel to investigate, detect, or prevent fraud; or
(b) Limits the payment or receipt of financial incentives for any other lawful
purpose.
8-43-402. False statement - felony. If, for the purpose of obtaining any order,
benefit, award, compensation, or payment under the provisions of articles 40 to 47 of this
title, either for self-gain or for the benefit of any other person, anyone willfully makes a
false statement or representation material to the claim, such person commits a class 5
felony and shall be punished as provided in section 18-1.3-401, C.R.S., and shall forfeit
all right to compensation under said articles upon conviction of such offense.
8-43-403. Attorney fees. (1) No contingent fee shall be applied to any medical
benefits that have been previously incurred and will be paid to the claimant or directly to
the medical care provider, in a permanent disability award, either by admission or
settlement. In the event that medical benefits are the only contested issue, the fee
agreement shall provide for reasonable fees calculated on a per-hour basis or, subject to
approval by the director, may provide for a contingent fee not to exceed the limitations
imposed by this section. On unappealed contested cases, a contingent fee exceeding
twenty percent of the amount of contested benefits shall be presumed to be unreasonable.
At the request of either an employee or the employee's attorney, the director shall
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determine what portion of the benefits awarded were contested, or the reasonableness of
the fee charged by such attorney, or both. At the request of the employer or its insurance
carrier or the attorney for either of them, the director shall determine the reasonableness
of the fee charged by the attorney for the insurance carrier. No request for determination
of the reasonableness of fees shall be considered by the director if received later than one
hundred eighty days after the issuance of the final order, judgment, or opinion disposing
of the last material issue in the case and the expiration of any right to review or appeal
therefrom. In making this determination, the director shall consider fees normally charged
by attorneys for cases requiring the same amount of time and skill and may decrease or
increase the fee payable to such attorney. If the director finds that a review by the
industrial claim appeals office or an appeal to the court of appeals or to the supreme court
was perfected or if the director finds that such attorney reasonably devoted an
extraordinary amount of time to the case, the director may award or approve a contingent
fee or other fee in a percentage or amount that exceeds twenty percent of the amount of
contested benefits. In determining the reasonableness of fees charged by an attorney for
an employer or employer's insurance carrier, the director shall compare the fees of such
attorney with the fees charged by the claimant's attorney in the same case and shall not
approve an amount substantially greater than the reasonable amount charged by the said
claimant's attorney or, if the claimant did not prevail, the reasonable amount the said
claimant's attorney would have charged had the claimant prevailed, unless the director
finds, based on a showing by the attorney for the employer or carrier, that higher fees are
objectively justifiable. Legal costs not found reasonable shall not be allowed as an
expense in fixing premium rates by the commissioner of insurance.
(2) Any attorney who represents any party in a workers' compensation case shall
provide the party with a written fee agreement which sets forth, in full, the attorney's
specific fee arrangement, including the criteria upon which the attorney bases his hourly
or set fee and the circumstances in which any modifications or adjustments to such fee
will be made, and specifying whether the client will be charged for the attorney's
expenses or advances made by the attorney on behalf of the party, including without
limitation costs of copying, research, telephone calls, postage, and any other expenses
incident to the litigation which the attorney may be ethically bound to undertake on behalf
of the party pursuant to law or pursuant to any court rule including the code of
professional responsibility as adopted by the supreme court of Colorado. Contingent fee
agreements shall be in conformity with all applicable provisions of the said code or of
rules of the supreme court, and, in addition, such agreements shall set forth the provisions
of this section in easy to understand language in at least ten-point bold-faced type. No
such fee agreement may be enforced against any party unless it complies with the
requirements of this section and is signed by both parties. Any attempt by an attorney
who intentionally does not comply with this section and who seeks to enforce a fee
agreement which does not comply with the requirements of this section shall be presumed
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to be a violation of the code of professional responsibility as adopted by the supreme
court of Colorado.
(3) Repealed.
8-43-404. Examination - refusal - personal responsibility - physicians to
testify and furnish results - injured worker right to select treating physicians injured worker right to third-party communications - definitions - rules. (1) (a) If in
case of injury the right to compensation under articles 40 to 47 of this title exists in favor
of an employee, upon the written request of the employee's employer or the insurer
carrying such risk, the employee shall from time to time submit to examination by a
physician or surgeon or to a vocational evaluation, which shall be provided and paid for
by the employer or insurer, and the employee shall likewise submit to examination from
time to time by any regular physician selected and paid for by the division.
(b) (I) At least three business days in advance of an examination under paragraph
(a) of this subsection (1), if requested by the claimant, the employer or insurer shall pay to
the claimant the claimant's estimated expenses of attending the examination, including
transportation, mileage, food, and hotel costs. Failure to provide payment in accordance
with this subparagraph (I) constitutes grounds for the claimant to refuse to attend the
examination.
(II) If an employer pays estimated expenses under this paragraph (b) and the
claimant does not attend the examination, the employer or insurer may recover the costs
paid for the employee's expenses from future indemnity benefits.
(2) (a) The employee shall be entitled to have a physician, provided and paid for
by the employee, present at any such examination. If an employee is examined by a
chiropractor at the request of the employer, the employee shall be entitled to have a
chiropractor provided and paid for by the employee present at any such examination.
After any examination conducted under this section, the examiner shall prepare a written
report giving a description of the examination performed, the written documents or any
other materials reviewed, and all findings or conclusions of the examiner. The employee
shall be entitled to receive from the examining physician or chiropractor a copy of any
report that the physician or chiropractor makes to the employer, insurer, or division upon
the examination, and the copy shall be furnished to the employee at the same time it is
furnished to the employer, insurer, or division. The employee shall also be entitled to
receive reports from any physician selected by the employer to treat the employee upon
the same terms and conditions and at the same time the reports are furnished by the
physician to the employer. All such examinations shall be recorded in audio in their
entirety and retained by the examining physician until requested by any party. Prior to
commencing the audio recording, the examining physician shall disclose to the employee
the fact that the exam is being recorded. If requested, an exact copy of the recording shall
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be provided to the parties. Nothing in this subsection (2) shall be construed to prevent any
party to the claim from making an audio recording of the examination. The division shall
promulgate rules regarding such recordings that shall include provisions for the protection
of the audio recordings and the privacy of information contained in such recordings. The
employer shall be entitled to receive reports from any physician or chiropractor selected
by the employee to treat or examine the employee in connection with such injury upon the
same terms and at the same time the reports are furnished by the physician or chiropractor
to the employee.
(b) The amendments made to paragraph (a) of this subsection (2) by Senate Bill
09-168, enacted in 2009, are declared to be procedural and were intended to and shall
apply to all workers' compensation claims, regardless of the date the claim was filed.
(3) So long as the employee, after written request by the employer or insurer,
refuses to submit to medical examination or vocational evaluation or in any way obstructs
the same, all right to collect, or to begin or maintain any proceeding for the collection of,
compensation shall be suspended. If the employee refuses to submit to such examination
after direction by the director or any agent, referee, or administrative law judge of the
division appointed pursuant to section 8-43-208 (1) or in any way obstructs the same, all
right to weekly indemnity which accrues and becomes payable during the period of such
refusal or obstruction shall be barred. If any employee persists in any unsanitary or
injurious practice which tends to imperil or retard recovery or refuses to submit to such
medical or surgical treatment or vocational evaluation as is reasonably essential to
promote recovery, the director shall have the discretion to reduce or suspend the
compensation of any such injured employee.
(4) Any physician or chiropractor who makes or is present at any such
examination may be required to testify as to the results thereof. Any physician or
chiropractor having attended an employee in a professional capacity may be required to
testify before the division when it so directs. A physician or chiropractor will not be
required to disclose confidential communications imparted to said physician or
chiropractor for the purpose of treatment and which are unnecessary to a proper
understanding of the case.
(5) (a) (I) (A) In all cases of injury, the employer or insurer shall provide a list of
at least two physicians or two corporate medical providers or at least one physician and
one corporate medical provider, where available, in the first instance, from which list an
injured employee may select the physician who attends said injured employee. The two
designated providers shall be at two distinct locations without common ownership. If
there are not two providers at two distinct locations without common ownership within
thirty miles of each other, then an employer may designate two providers at the same
location or with shared ownership interests. Upon request by an interested party to the
workers' compensation claim, a designated provider on the employer's list shall provide a
list of ownership interests and employment relationships, if any, to the requesting party
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within five days of the receipt of the request. If the services of a physician are not
tendered at the time of injury, the employee shall have the right to select a physician or
chiropractor. For purposes of this section, "corporate medical provider" means a medical
organization in business as a sole proprietorship, professional corporation, or partnership.
(B) If there are fewer than four physicians or corporate medical providers within
thirty miles of the employer's place of business who are willing to treat an injured
employee, the employer or insurer may instead designate one physician or one corporate
medical provider, and subparagraphs (III) and (IV) of this paragraph (a) shall not apply. A
physician is presumed willing to treat injured workers unless he or she indicates to the
employer or insurer to the contrary.
(II) (A) If the employer is a health care provider or a governmental entity that
currently has its own occupational health care provider system, the employer may
designate health care providers from within its own system and is not required to provide
an alternative physician or corporate medical provider from outside its own system.
(B) If the employer has its own on-site health care facility, the employer may
designate such on-site health care facility as the authorized treating physician, but the
employer shall comply with subparagraph (III) of this paragraph (a). For purposes of this
sub-subparagraph (B), "on-site health care facility" means an entity that meets all
applicable state requirements to provide health care services on the employer's premises.
(III) An employee may obtain a one-time change in the designated authorized
treating physician under this section by providing notice that meets the following
requirements:
(A) The notice is provided within ninety days after the date of the injury, but
before the injured worker reaches maximum medical improvement;
(B) The notice is in writing and submitted on a form designated by the director.
The notice provided in this subparagraph (III) shall also simultaneously serve as a request
and authorization to the initially authorized treating physician to release all relevant
medical records to the newly authorized treating physician.
(C) The notice is directed to the insurance carrier or to the employer's authorized
representative, if self-insured, and to the initially authorized treating physician and is
deposited in the United States mail or hand-delivered to the employer, who shall notify
the insurance carrier, if necessary, and the initially authorized treating physician;
(D) The new physician is on the employer's designated list or provides medical
services for a designated corporate medical provider on the list;
(E) The transfer of medical care does not pose a threat to the health or safety of
the injured employee;
(F) An insurance carrier, or an employer's authorized representative if the
employer is self-insured, shall track how often injured employees change their authorized
treating physician pursuant to this subparagraph (III) and shall report such information to
the division upon request.
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(IV) (A) When an injured employee changes his or her designated authorized
treating physician, the newly authorized treating physician shall make a reasonable effort
to avoid any unnecessary duplication of medical services.
(B) The originally authorized treating physician shall send all medical records in
his or her possession pertaining to the injured employee to the newly authorized treating
physician within seven calendar days after receiving a request for medical records from
the newly authorized treating physician.
(C) The originally authorized treating physician shall continue as the authorized
treating physician for the injured employee until the injured employee's initial visit with
the newly authorized treating physician, at which time the treatment relationship with the
initially authorized treating physician shall terminate.
(D) The opinion of the originally authorized treating physician regarding work
restrictions and return to work shall control unless and until such opinion is expressly
modified by the newly authorized treating physician.
(E) The newly authorized treating physician shall be presumed to have consented
to treat the injured employee unless the newly authorized treating physician expressly
refuses in writing within five days after the date of the notice to change authorized
treating physicians. If the newly authorized treating physician refuses to treat the injured
employee, the employee may return to the employer to request an alternative authorized
treating physician. If the employer does not provide an alternative authorized treating
physician within five days after the employee's request, rules established by the division
shall control.
(V) If the authorized treating physician moves from one facility to another, or
from one corporate medical provider to another, an injured employee may continue care
with the authorized treating physician, and the original facility or corporate medical
provider shall provide the injured employee's medical records to the authorized treating
physician within seven days after receipt of a request for medical records from the
authorized treating physician.
(VI) In addition to the one-time change of physician allowed in subparagraph (III)
of this paragraph (a), upon written request to the insurance carrier or to the employer's
authorized representative if self-insured, an injured employee may procure written
permission to have a personal physician or chiropractor treat the employee. If permission
is neither granted nor refused within twenty days, the employer or insurance carrier shall
be deemed to have waived any objection to the employee's request. Objection shall be in
writing and shall be deposited in the United States mail or hand-delivered to the employee
within twenty days. An insurance carrier, or an employer's authorized representative if
self-insured, shall track how often an injured employee requests to change his or her
physician and how often such change is granted or denied and shall report such
information to the division upon request. Upon the proper showing to the division, the
employee may procure the division's permission at any time to have a physician of the
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employee's selection treat the employee, and in any nonsurgical case the employee, with
such permission, in lieu of medical aid, may procure any nonmedical treatment
recognized by the laws of this state as legal. The practitioner administering the treatment
shall receive fees under the medical provisions of articles 40 to 47 of this title as specified
by the division.
(b) Any private insurer or self-insured employer acting as its own insurance
carrier as provided in section 8-44-201 providing workers' compensation coverage shall
pay for chiropractic care as provided in paragraph (a) of this subsection (5).
(c) A treating physician shall not communicate with the employer or insurer of an
injured worker regarding that injured worker unless:
(I) The injured worker is present for the communication; or
(II)
The treating physician makes an accurate written record of the
communication, containing all relevant and material information that was communicated,
and provides the injured worker access to the writing in the same manner as medical
records disclosures as required by director rules.
(6) Application or prosecution of a claim for benefits shall be a waiver of any
privilege concerning communications relating to all medical issues raised by the claim,
for the purposes of a utilization review conducted pursuant to section 8-43-501.
(7) An employer or insurer shall not be liable for treatment provided pursuant to
article 41 of title 12, C.R.S., unless such treatment has been prescribed by an authorized
treating physician.
(8) Upon request by an employee who has not reached maximum medical
improvement and whose authorized treating physician is not level II accredited, an insurer
or self-insured employer shall select a level II accredited physician as the authorized
treating physician.
(9) (a) Health care services provided shall be deemed authorized if the claim is
found to be compensable when:
(I) Compensability of a claim is initially denied;
(II) The services of the physician selected by the employer are not tendered at the
time of the injury; and
(III) The injured worker is treated:
(A) At a public health facility in the state;
(B) At a public health facility within one hundred fifty miles of the residence of
the injured worker; or
(C) Through a publicly funded program.
(b) A claimant shall not be liable for payment for treatment by the provider under
this subsection (9) if the treatment is reasonably needed and related to the injury.
8-43-405. Payment as discharge of liability - conflicting claims. Payment of
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death benefits to one or more dependents shall protect and discharge to that extent all
compensation under articles 40 to 47 of this title unless and until any other person
claiming to be a dependent has given the division notice of said person's claim and until
the division has notified the employer or the employer's insurance carrier of such claim.
In such case, the director or an administrative law judge shall determine the respective
rights of said rival claimants, and thereafter such death benefits shall be paid to such
dependents as the director or the administrative law judge may find so entitled under the
provisions of said articles.
8-43-406. Compensation in lump sum. (1) At any time after six months have
elapsed from the date of injury, the claimant may elect to take all or any part of the
compensation awarded in a lump sum by sending written notice of the election and the
amount of benefits requested to the carrier or the noninsured or self-insured employer.
The carrier or self-insured employer shall file the calculation of the lump sum due and
notice that the lump sum has been paid to the claimant within ten days after the election.
When the claimant is unrepresented, the director shall calculate amounts to be paid based
on the present worth of partial payments, considering interest at four percent per annum,
and less a deduction for the contingency of death. The director shall make the method of
calculation of lump sums available to all parties at all times, including posting the
information on the division's web site. Neither the director nor an administrative law
judge shall in any way attempt to condition the lump sum payment on the claimant
waiving the right to pursue permanent total disability benefits.
(2) The aggregate of all lump sums granted to a claimant who has been awarded
compensation shall not exceed sixty thousand dollars.
8-43-407. Election to waive vocational rehabilitation benefits and become
subject to permanent partial disability provisions. In all cases arising under articles 40
to 47 of this title prior to July 1, 1987, the employee, the employer, and, if insured, the
insurance carrier may elect, upon unanimous agreement, in writing to waive vocational
rehabilitation which was awarded pursuant to section 8-49-101 as it existed prior to July
1, 1987, and become subject to the permanent partial disability provisions pursuant to
section 8-42-110, as said section existed prior to July 1, 1991. Such election shall be
made in a form prescribed by the director and shall not affect payments made prior to the
filing of such agreement. Failure to agree to the options available under the provisions of
this section shall not be evidence of bad faith in any future litigation by either party.
8-43-408. Default of employer - additional liability. (1) In any case where the
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employer is subject to the provisions of articles 40 to 47 of this title and at the time of an
injury has not complied with the insurance provisions of said articles, or has allowed the
required insurance to terminate, or has not effected a renewal thereof, the employee, if
injured, or, if killed, the employee's dependents may claim the compensation and benefits
provided in said articles, and in any such case the amounts of compensation or benefits
provided in said articles shall be increased fifty percent.
(2) In all cases where compensation is awarded under the terms of this section, the
director or an administrative law judge of the division shall compute and require the
employer to pay to a trustee designated by the director or administrative law judge an
amount equal to the present value of all unpaid compensation or benefits computed at the
rate of four percent per annum; or, in lieu thereof, such employer, within ten days after
the date of such order, shall file a bond with the director or administrative law judge
signed by two or more responsible sureties to be approved by the director or by some
surety company authorized to do business within the state of Colorado. The bond shall be
in such form and amount as prescribed and fixed by the director and shall guarantee the
payment of the compensation or benefits as awarded. The filing of any appeal, including a
petition for review, shall not relieve the employer of the obligation under this subsection
(2) to pay the designated sum to a trustee or to file a bond with the director or
administrative law judge.
(3) A certified copy of any award of the director, administrative law judge, or
panel ordering the payment of compensation entered in such case may be filed with the
clerk of the district court of any county in this state at any time after the order of the
administrative law judge awarding compensation, and the same shall be recorded by said
clerk in the judgment book of said court and entry thereof made in the judgment docket,
and it shall thenceforth have all the effect of a judgment of the district court, and
execution may issue thereon out of said court as in other cases. Upon the reversal, setting
aside, modification, or vacation of said order or award and upon payment to the trustee or
furnishing of bond in accordance with the terms of this section, then, upon certification
thereof by the director, administrative law judge, or panel, said record in the judgment
book and the entry in the judgment docket shall be vacated, and any execution thereon
shall be recalled.
(4) Any employer who fails to comply with a lawful order or judgment issued
pursuant to subsection (2) or (3) of this section is liable to the employee, if injured, or, if
killed, said employee's dependents, in addition to the amount in the order or judgment, for
an amount equal to fifty percent of such order or judgment or one thousand dollars,
whichever is greater, plus reasonable attorney fees incurred after entry of a judgment or
order.
8-43-409.
Defaulting employers - penalties - enjoined from continuing
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business - fines - procedure - definition. (1) An employer subject to the terms and
provisions of articles 40 to 47 of this title who fails to insure or to keep the insurance
required by such articles in force, allows the insurance to lapse, or fails to effect a
renewal of the insurance shall not continue business operations while such default in
effective insurance continues. Upon receiving information that an employer is in default
of its insurance obligations, the director shall investigate and, if the information can be
substantiated, shall notify the employer of the opportunity to request a prehearing
conference on the issue of default. As part of the director's investigation, the director may
verify that all employees of that employer are insured through the employer's workers'
compensation plan. The director may forward any workers' compensation coverage issue
to the employer's workers' compensation carrier for further investigation by the carrier.
Thereafter, if necessary, the director may set the issue of the employer's default for
hearing in accordance with hearing time schedule and procedures set forth in articles 40
to 47 of this title and rules promulgated by the director. Upon a finding that the employer
is in default of its insurance obligations, the director shall take either or both of the
following actions:
(a) Order the employer in default to cease and desist immediately from continuing
its business operations during the period such default continues;
(b) For every day that the employer fails or has failed to insure or to keep the
insurance required by articles 40 to 47 of this title in force, allows or has allowed the
insurance to lapse, or fails or has failed to effect a renewal of such coverage, impose a
fine of:
(I) Not more than two hundred fifty dollars for an initial violation; or
(II) Not less than two hundred fifty dollars or more than five hundred dollars for a
second and any subsequent violation. For purposes of this subparagraph (II) only, if an
employer has been fined pursuant to subparagraph (I) of this paragraph (b) and the
director determines that substantially the same people or entities were involved in
forming a subsequent employer, the initial violation referred to in subparagraph (I) of this
paragraph (b) shall be deemed to have already occurred with regard to violations
committed by the subsequent employer.
(2) A cease-and-desist order issued or fine imposed by the director under
subsection (1) of this section shall include specific findings of fact that reflect:
(a) The employer received notice of a hearing, when applicable;
(b) The employer employs employees for whom it must carry workers'
compensation insurance under the provisions of articles 40 to 47 of this title;
(c) The employer does not or did not have a policy of workers' compensation
insurance in effect; and
(d) The employer continues or continued to operate its business in the absence of
such coverage.
(3) Notwithstanding any other provision of articles 40 to 47 of this title, after the
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entry of a cease and desist order and upon the request of the director, the attorney general
shall immediately institute proceedings for injunctive relief against the employer in the
district court of any county in this state where such employer does business. In any such
district court proceeding, a certified copy of any cease and desist order entered by the
director in accordance with the provisions of subsection (1) of this section based upon
evidence in the record shall be prima facie evidence of the facts found in such record.
Such injunctive relief may include the issuance of a temporary restraining order under
rule 65 of the Colorado rules of civil procedure, which order shall enjoin the employer
from continuing its business operations until it has procured the required insurance or has
posted adequate security with the court pending the procurement of such insurance. The
court, in its discretion, shall determine the amount that shall constitute adequate security.
(4) The issuance of an order to cease and desist, the imposition of a fine pursuant
to subsection (1) of this section, or the issuance of an order for injunctive relief against an
employer for failure to insure or to keep insurance in force as required by articles 40 to 47
of this title shall be the penalty for such failure within the meaning of section 8-43-304
(1) and such penalty shall be in addition to the increase in benefits that section 8-43-408
requires.
(5) The director or administrative law judge shall report to the division each time
a fine is imposed pursuant to subsection (1) of this section. Each such report shall include
the amount of the fine and the name of the offending party.
(6) A certified copy of any final order of the director ordering the payment of a
fine imposed pursuant to subsection (1) of this section may be filed with the clerk of the
district court of any county in this state at any time after the period of time provided by
articles 40 to 47 of this title for appeal or seeking review of the order has passed without
appeal or review being sought or, if appeal or review is sought, after the order has been
finally affirmed and all appellate remedies and all opportunities for review have been
exhausted. The party filing the order shall at the same time file a certificate to the effect
that the time for appeal or review has passed without appeal or review being undertaken
or that the order has been finally affirmed with all appellate remedies and all
opportunities for review having been exhausted. The clerk of the district court shall
record the order and the filing party's certificate in the judgment book of the court and
entry thereof made in the judgment docket, and it shall thereafter have all the effect of
and constitute a judgment of the district court, and execution may issue thereon from said
court as in other cases. Any such order may be filed by and in the name of the director.
(7) Fines collected pursuant to this section shall be transmitted to the state
treasurer, who shall credit twenty-five percent of such fine to the workers' compensation
cash fund, created in section 8-44-112, which shall be used to offset the premium
surcharge. The state treasurer shall credit the remainder of the fine to the general fund.
(8) For the purposes of this section, "construction site" means a location where a
structure that is attached or will be attached to real property is constructed, altered, or
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remodeled.
8-43-410. Right to compensation operates as lien - interest on award. (1) The
right of compensation granted by articles 40 to 47 of this title and any awards made
thereunder shall have the same preference or lien without limit of amount against the
assets of the employer or the employer's insurer or both as may be allowed by law for a
claim for unpaid wages for labor.
(2) Every employer or insurance carrier of an employer shall pay interest at the
rate of eight percent per annum upon all sums not paid upon the date fixed by the award
of the director or administrative law judge for the payment thereof or the date the
employer or insurance carrier became aware of an injury, whichever date is later. Upon
application and satisfactory showing to the director or administrative law judge of the
valid reasons therefor, said director or administrative law judge, upon such terms or
conditions as the director or administrative law judge may determine, may relieve such
employer or insurer from the payment of interest after the date of the order therefor; and
proof that payment of the amount fixed has been offered or tendered to the person
designated by the award shall be such sufficient valid reason.
PART 5
UTILIZATION REVIEW PROCESS INDEPENDENT MEDICAL EXAMINATIONS
8-43-501.
Utilization review process - legislative declaration - cash
fund. (1) The general assembly hereby finds and determines that insurers and selfinsured employers should be required to pay for all medical services pursuant to this
article which may be reasonably needed at the time of an injury or occupational disease to
cure and relieve an employee from the effects of an on-the-job injury. However, insurers
and self-insured employers should not be liable to pay for care unrelated to a compensable
injury or services which are not reasonably necessary or not reasonably appropriate
according to accepted professional standards. The general assembly, therefore, hereby
declares that the purpose of the utilization review process authorized in this section is to
provide a mechanism to review and remedy services rendered pursuant to this article
which may not be reasonably necessary or reasonably appropriate according to accepted
professional standards.
(2) (a) An insurer, self-insured employer, or claimant may request a review of
services rendered pursuant to this article by a health care provider. Requests for
utilization review shall be submitted on forms promulgated by the director by rule. At the
time of submission of a review request, the requester shall pay the division a fee
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prescribed by the director by rule. Such fee shall cover the division's administrative costs
and the costs of compensating utilization review committee members. If a claimant is
successful in a utilization review case brought pursuant to this section, the division shall
reimburse the fee charged pursuant to this paragraph (a) and assess it against the insurer
or self-insured employer. The state treasurer shall credit fees collected pursuant to this
section to the utilization review cash fund, which fund is hereby created. Moneys in the
utilization review cash fund are continuously appropriated to the division for the purpose
of administering the utilization review program and may not revert to the general fund at
the end of any fiscal year. The division shall mail to any claimant, insurer, or self-insured
employer a notice that a case is to be reviewed and that the claimant may be examined as
a result of such review. The claimant, insurer, or self-insured employer has thirty days
from the date of mailing of such notice to examine the medical records submitted by the
party who requested the review and may add medical records to the utilization review file
that the party believes may be relevant to the utilization review. The division shall
maintain a special file for utilization review cases. Such file shall be accessible only to
interested parties in a utilization review case and shall not otherwise be open to any
person.
(b) Prior to submitting a request for a utilization review pursuant to this section,
an insurer, self-insured employer, or claimant shall hire a licensed medical professional to
review the services rendered in the case. A report of the review shall be submitted with all
necessary medical records, reports, and the request for utilization review.
(c) A claimant may request a utilization review pursuant to this section if the
claimant has been refused a request pursuant to section 8-43-404 (5) to have a personal
physician or chiropractor attend the claimant. A claimant requesting a utilization review
pursuant to this paragraph (c) shall file the request on forms promulgated by the director
by rule and shall pay the fee required by paragraph (a) of this subsection (2).
(d) For purposes of this section only, "medical records" means documents and
transcripts of information obtained from a patient or his or her medical professional that
are related to the patient's medical diagnosis, treatment, and care.
(e) When an insurer, self-insured employer, or claimant requests utilization
review, no other party shall request a hearing pursuant to section 8-43-207 until the
utilization review proceedings have become final, if such hearing request concerns issues
about a change of physician or whether treatment is medically necessary and appropriate.
(f) Once a utilization review proceeding has become final and no longer subject to
appeal, the final disposition of the issues in such proceeding shall be binding on the
parties and preclude a contrary ruling on such issues in a subsequent hearing under
section 8-43-207 unless a preponderance of evidence is shown.
(3) (a) The director, with input from the medical director serving pursuant to
section 8-42-101 (3.6) (n), shall appoint members of utilization review committees for
purposes of this section and section 8-42-101 (3.6). The director shall establish
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committees based on the different areas of health care practice for which requests for
utilization review may be made. The director shall establish the qualifications for
members of the different committees and the areas of health care practice in which each
such committee shall conduct requested utilization reviews. Cases of requested utilization
review shall be referred to committees appointed pursuant to this subsection (3) by the
director based upon the areas of health care practice for which each committee is
appointed.
(b) Each committee established pursuant to paragraph (a) of this subsection (3)
shall be composed of three members. Committee members shall be compensated for their
time by the division out of moneys in the utilization review cash fund, created in
paragraph (a) of subsection (2) of this section. Any member of a committee appointed
pursuant to this subsection (3) shall be immune from criminal liability and from suit in
any civil action brought by any person based upon an action of such a committee, if such
member acts in good faith within the scope of the function of the committee, has made
reasonable effort to obtain the facts of the matter as to which action is taken, and acts in
the reasonable belief that the action taken is warranted by the facts. The immunity
provided by this paragraph (b) shall extend to any person participating in good faith in
any investigative proceeding pursuant to this section.
(c) (I) For each case, a committee may recommend by majority vote of such
committee that no change be ordered or that a change of provider be ordered.
(II) A committee may also, by unanimous vote, recommend that the director order
that payment for fees charged for services in the case be retroactively denied.
(III) A committee may also, by unanimous vote, recommend that the director
order that a physician's accreditation status under section 8-42-101 (3.6) be revoked.
(d) In preparing and issuing an order in any case, the director shall review and
give great weight to the reports and recommendations of the committee.
(e) In appropriate cases pursuant to this section and section 8-42-101 (3.6), the
director may order that an insurer, employer, or self-insured employer be permitted to
deny reimbursement to a provider for any medical care or services rendered to a claimant;
and such order may be effective for up to three years. Bills for services rendered during
the effective period of any such order shall be unenforceable and shall not result in any
debt of the claimant. In deciding whether to issue any such order, the director shall give
great weight to the fact that:
(I) The provider has, within any two-year period, been the subject of two or more
orders removing the provider from the role of authorized treating physician; or
(II) The provider has, within any two-year period, been the subject of two or more
orders retroactively denying the payment of the provider's fees; or
(III) The provider has, within any two-year period, been the subject of two or
more orders either retroactively denying the payment of the provider's fees or removing
the provider from the role of authorized treating physician.
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(4) If the director orders pursuant to subsection (3) of this section that a change of
provider be made in a case or that the physician's accreditation status be revoked, the
claimant, insurer, or self-insured employer shall have seven days from receipt of the
director's order in which to agree upon a level I provider. If the claimant, insurer, or selfinsured employer can not reach agreement within the seven day time period, the director
shall select three providers. A new provider shall be chosen from the three providers so
selected by the party who was successful in the request for review. If no appeal is filed,
the successful party shall notify the division of the name of the new provider within seven
days of the selection of the three potential providers. If the new health care provider is not
selected within such seven days, the director shall select the provider.
(5) (a) Any party, including the health care provider, may appeal to an
administrative law judge for review of an order specifying that no change occur or that a
change of provider be made with respect to a case. Such review shall be limited to the
record on appeal. The findings of a utilization review committee regarding the change of
provider in a case shall be afforded great weight by the administrative law judge in any
proceeding. A party disputing the finding of such utilization review committee shall have
the burden of overcoming the finding by clear and convincing evidence.
(b) If the director has entered an order specifying that the payment of fees in the
case be retroactively denied, or permitting an insurer, employer, or self-insured employer
to deny payments for medical services or care rendered pursuant to subsection (3) (e) of
this section, the health care provider may request a de novo hearing before an
administrative law judge by filing an application for hearing within thirty days from the
date of the certificate of mailing of the order. In a hearing held pursuant to this paragraph
(b), the record upon which the director based the order shall be admissible in evidence.
The findings of the utilization review committee regarding the retroactive denial of
payment of fees in a case shall be afforded great weight by the administrative law judge
in any proceeding. A party disputing the finding of such utilization review committee
shall have the burden of overcoming the finding by clear and convincing evidence.
(c) Any appeal filed pursuant to this subsection (5) must be filed within forty days
from the date of the certificate of mailing of the director's order.
(d) Any party dissatisfied with an order entered by an administrative law judge
pursuant to paragraph (a) of this subsection (5) may file a petition to review the order
pursuant to section 8-43-301.
(e) (Deleted by amendment, L. 91, p. 1326, § 43, effective July 1, 1991.)
8-43-502. Independent medical examinations. (1) The director shall maintain a
list of physicians which shall be known as the medical review panel. The director shall
utilize public and private resources as are available and appropriate in determining
standards and qualifications for the medical review panel members. It shall be the duty of
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the medical review panel to perform independent medical examinations at the request of
the director or an administrative law judge.
(2) Any party to a workers' compensation proceeding has the right to obtain an
independent medical examination with the physician selected by the director from the
medical review panel. The requesting party, when submitting a request for the
independent medical evaluation, shall specify the professional specialty of the physician
to be selected by the director to perform the independent medical examination. The
director shall select, through a revolving selection process established by the department,
the physician from the medical review panel to perform the examination. The cost of such
independent medical examination shall be borne by the requesting party. In no instance
shall the independent examining physician become the authorized treating physician.
(3) Whenever the director or an administrative law judge deems it necessary to
assist in resolving any issue of medical fact or opinion, the director or administrative law
judge shall cause the employee to be examined by a physician or physicians from the
medical review panel. The director or the administrative law judge shall have the
authority and discretion to charge the cost of such examination to the employer or, if
insured, the employer's insurance carrier. Transportation expenses and all expenses
necessary, reasonable, and incidental to such examination shall be included in the cost of
such examination.
(4) Nothing in this section shall preclude any party from obtaining an independent
medical examination from a physician who is not a member of the medical review panel.
(5) Upon written request of the employer, or if insured, the insurer, the employee
shall submit to a reasonable number of independent medical examinations as provided for
in this section. The employee shall be entitled to have a physician, provided and paid for
by such employee, present at any such independent medical examination. The employee
shall be entitled to receive from the independent examining physician a copy of any report
which said physician makes to the employer, insurer, or the division. Said copy shall be
furnished to the employee at the same time it is furnished to the employer, insurer, or
division.
(6) Members of the medical review panel and any person acting as a consultant,
witness, or complainant shall be immune from liability in any civil action brought against
said person for acts occurring while the person was acting as a panel member, consultant,
witness, or complainant, respectively, if such person was acting in good faith within the
scope of the respective capacity, made a reasonable effort to obtain the facts of the matter
as to which action was taken, and acted in the reasonable belief that the action taken by
such person was warranted by the facts.
(7) Any physician determining an impairment rating on an injured worker
pursuant to this title shall be immune from civil liability in any action brought by any
person based on said impairment rating, absent the showing of malice or bad faith on the
part of the rating physician.
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8-43-503. Utilization review of health care providers. (1) The general assembly
hereby finds and determines that health care providers that provide medical care or health
care services that are not reasonably necessary or not reasonably appropriate according to
accepted professional standards should not be allowed to provide such services to
workers' compensation claimants. The general assembly, therefore, hereby declares that
the purpose of the utilization review process authorized in this section is to provide a
mechanism to review medical care or health care services rendered pursuant to this article
that may not be reasonably necessary or reasonably appropriate according to accepted
professional standards and to provide a mechanism to prevent such health care providers
from providing medical care or health care services.
(2) The provisions relating to the procedures for utilization review found in
section 8-43-501 (2), (3), (4), (5) (a), (5) (c), and (5) (d) shall apply to utilization review
under this section. A unanimous vote by the committee created in section 8-43-501 (3)
shall be required for a recommendation to the director that a health care provider not be
allowed to provide medical care or health care services to claimants.
(3) Employers, insurers, claimants, or their representatives shall not dictate to any
physician the type or duration of treatment or degree of physical impairment. Nothing in
this subsection (3) shall be construed to abrogate any managed care or cost containment
measures authorized in articles 40 to 47 of this title.
PART 6
PROVIDER REVIEW AND DISCLOSURE
8-43-601. Short title. This part 6 shall be known and may be cited as the
"Provider Review and Disclosure Act".
8-43-602. Legislative declaration. The general assembly finds, determines, and
declares that insurer performance programs are used in marketing, sales, and other efforts,
and, as such, may impact an employer's selection of an authorized health care provider.
To protect patients, employers, and providers, and to avoid improper profiling, all
performance programs must be fair, objective, consistently applied, and accord providers
due process. Consistent with these goals, performance programs should align incentives
not only with efficient operations, but also with cost-effective, high-quality care.
Accordingly, the general assembly finds that requiring minimum standards and full
disclosure of performance program data and methodologies will help improve the quality
and efficiency of health care delivered to Colorado workers.
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8-43-603. Definitions. As used in this part 6, unless the context otherwise
requires:
(1) "Insurer" means an entity that provides workers' compensation insurance
coverage required by article 44 of this title, including any third-party insurer or selfinsured employer.
(2) "Methodology" means the method by which an assessment or measurement is
determined, including algorithms or studies, evaluation of data, application of guidelines,
or performance measures.
(3) "Patient" means a person who qualifies for health care benefits under articles
40 to 47 of this title.
(4) "Performance program" means any program, system, or process through which
an insurer rates or recognizes the cost, efficiency, quality, or other assessment or
measurement of a provider's care, whether through awards, payments, assignment, or
characterization or representation that is disclosed to patients, other providers, employers,
or the public.
(5) "Provider" means a physician licensed under the "Colorado Medical Practice
Act", article 36 of title 12, C.R.S., or a clinic that provides health care pursuant to articles
40 to 47 of this title.
8-43-604. Performance programs. (1) All performance programs shall include,
at a minimum:
(a) A quality of care component that is satisfied by using standard treatment
guidelines promulgated by the director pursuant to section 8-42-101 or evidence-based
administrative, operational, or clinical performance measures that improve care;
(b) A clear representation of the weight given to the quality of care component in
comparison with other factors, which weight shall be equal to or greater than any other
factor;
(c) If a performance program includes an employer satisfaction element, a patient
satisfaction element, which shall be weighted equal to or greater than the employer
satisfaction element;
(d) Statistical analyses that are objective, accurate, valid, reliable, and verifiable;
(e) A period of assessment of data, pertinent to the performance program, which
shall be updated at appropriate intervals;
(f) If claims data are used, accurate claims data appropriately attributed to the
provider. When reasonably available, the insurer shall use aggregated data from other
insurers to supplement its own claims data.
(g) The provider's responsibility for health care decisions and the financial
consequences of those decisions, which shall be fairly and accurately attributed to the
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provider.
(2) Performance program results shall be reported to each provider reviewed in
the program and shall include comparison of the provider's results to the results of the
provider's peers.
(3) Any disclosure to patients, other providers, employers, or the public of the
results of a performance program shall be accompanied by a conspicuous disclaimer
written in bold-faced type stating that the information is intended only as a guide, should
not be the sole factor in selecting a provider, has a risk of error, and should be discussed
with the provider.
8-43-605. Due process. (1) At least forty-five days before disclosing the results
of a performance program, an insurer shall give a provider written notice of the
availability of the provider's individual result, specific instructions on how the provider
can access the result, and a description of the implications to the provider. The written
notice shall describe the procedures by which the provider may request:
(a) The information required to be disclosed under subsection (2) of this section;
and
(b) An appeal of the result pursuant to subsection (3) of this section.
(2) (a) Within ten business days after receiving a request by or on behalf of a
provider, an insurer shall disclose, in a manner that is reasonably understandable and that
allows the provider to verify the data against his or her records, the methodology and all
data upon which a provider's performance program result was calculated, with sufficient
detail to allow the provider to determine the effect of the methodology on the data
reviewed.
(b) An insurer shall not use the "Uniform Trade Secrets Act", article 74 of title 7,
C.R.S., to avoid compliance with this section.
(3) Insurers shall establish procedures for providers to appeal the results of a
performance program. Such procedures, in addition to the disclosures and the written
notice furnished, shall provide:
(a) A reasonable method by which the provider may submit notice of the desire to
appeal;
(b) The name, title, qualifications, and relationship to the insurer of any person
responsible for deciding the appeal, who shall be authorized to uphold, modify, or reject
results or require additional action to ensure that results are fair, reasonable, accurate, and
comply with the requirements of this part 6;
(c) An opportunity for a provider to submit or have considered corrected data or
other information relevant to the results or the appropriateness of the methodology used.
If requested, a provider may appear at a face-to-face meeting with those responsible for
the appeal decision at a location reasonably convenient to the provider or by
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teleconference. The provider shall submit in writing any corrected data or information in
advance of the meeting.
(d) The provider's right to be assisted by a representative, including an attorney;
(e) A detailed written decision regarding the appeal that states the reasons for
upholding, modifying, or rejecting the appeal;
(f) Resolution of the appeal within forty-five days after the date upon which the
data and methodology are disclosed unless otherwise agreed to by the parties to the
appeal; and
(g) A stay on the implementation, use, and disclosure of and action upon the
individual results of the performance program until the appeal and any subsequent
hearing requested pursuant to section 8-43-207 has become final.
8-43-606. Enforcement. (1) An insurer shall not limit, by contract or other
means, the right of a provider to enforce this part 6.
(2) This part 6 may be enforced through a hearing pursuant to section 8-43-207 or
in a civil action, and any remedies at law and in equity are available.
(3) A violation of this part 6 constitutes an unfair or deceptive act or practice
under part 11 of article 3 of title 10, C.R.S.
8-43-607. Filing with director. At least thirty days before implementing any new
or amended performance program, an insurer shall file a detailed description of the
performance program with the director.
ARTICLE 44
Insurance
PART 1
GENERAL PROVISIONS
8-44-101. Insurance requirements. (1) Any employer subject to the provisions
of articles 40 to 47 of this title shall secure compensation for all employees in one or more
of the following ways, which shall be deemed to be compliance with the insurance
requirements of said articles:
(a) By insuring and keeping insured the payment of such compensation in the
Pinnacol Assurance fund;
(b) By insuring and keeping insured the payment of such compensation with any
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stock or mutual corporation authorized to transact the business of workers' compensation
insurance in this state. If insurance is effected in such stock or mutual corporation, the
employer or insurer shall forthwith file with the division, in form prescribed by it, a notice
specifying the name of the insured and the insurer, the business and place of business of
the insured, the effective and termination dates of the policy, and, when requested, a copy
of the contract or policy of insurance.
(c) By procuring a self-insurance permit from the executive director as provided in
section 8-44-201, except for public entity pools as described in section 8-44-204 (3),
which shall procure self-insurance certificates of authority from the commissioner of
insurance as provided in section 8-44-204;
(d) By procuring a self-insurance certificate of authority from the commissioner of
insurance as provided in section 8-44-205.
(2) It shall be unlawful, except as provided in sections 8-41-401 and 8-41-402, for
any employer, regardless of the method of insurance, to require an employee to pay all or
any part of the cost of such insurance.
(3) (a) (I) Except as otherwise provided in subparagraph (II) of this paragraph (a),
all public entities in the state shall insure and keep insured the payment of compensation
by electing one of the methods provided in subsection (1) of this section. A public entity
having an insured payroll of less than one million dollars annually shall not be eligible for
self-insurance; except that public entities forming a pool pursuant to section 8-44-204 (3)
shall be eligible if the total of all the payrolls of the public entities in the pool exceeds the
required minimum.
(II) Any public entity in the state that is participating in the federal prison industry
enhancement certification program pursuant to the federal "Justice System Improvement
Act of 1979", 18 U.S.C. sec. 1761 (c), shall insure and keep insured the payment of
compensation by electing one of the methods provided in subsection (1) of this section;
except that the method for insuring the participants of such program need not be the same
method selected by the public entity pursuant to subparagraph (I) of this paragraph (a).
(b) For purposes of this subsection (3), the department of human services, by
virtue of the self-insurance program established pursuant to section 8-44-203, shall be
considered a public entity of the state.
8-44-102. Contract for insurance subject to workers' compensation act. Every
contract for the insurance of compensation and benefits as provided in articles 40 to 47 of
this title or against liability therefor shall be made subject to all the provisions of said
articles, and all provisions in such contract for insurance inconsistent with the provisions
of said articles shall be void. Any contract of insurance issued under said articles by any
insurance carrier, including stock and mutual corporations and Pinnacol Assurance, may
include and cover any liability of the employer on account of personal injuries sustained
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by or death resulting therefrom to any employee as such. No insurance carrier shall write
any policy of insurance covering the liability under said articles of any employer doing
business within the state of Colorado except on a form that has been previously filed with
and approved by the commissioner of insurance, nor shall there be attached to said policy
or contract of insurance any endorsement, rider, letter, or other document affecting such
contract unless the same has been filed with and the form thereof approved by the
commissioner of insurance. The commissioner of insurance shall from time to time
approve and prescribe a standard or universal form, as nearly as possible, for every
contract or policy of insurance, endorsement, rider, letter, or other document affecting
such contract for use in insuring the compensation provided for in said articles.
8-44-103. Insurers to file system of rating - approval. Every insurance carrier
authorized to transact business in this state that insures employers against liability for
compensation under the provisions of articles 40 to 47 of this title shall file with the
commissioner of insurance its classification of risks, any premiums relating thereto, and
any subsequent proposed classification of risks and premiums, together with all rates and
any systems of rating.
8-44-104. Cutting rates - rebates - penalty. Every insurance carrier that writes
compensation insurance shall write insurance at the rates filed with the commissioner of
insurance. The cutting of rates, rebating, or any other method whereby, directly or
indirectly, any employer is given the benefit of or obtains a rate lower than that approved
by the commissioner of insurance is prohibited. The commissioner of insurance may
suspend the license of any insurance carrier, agent, or broker who violates any provision
of this section. Also, any insurance carrier, any employer, or any officer, agent, or
employee thereof who violates any provision of this section is guilty of a misdemeanor
and, upon conviction thereof, shall be punished by a fine of not more than one hundred
dollars for each such violation.
8-44-105. Provisions of policies - primary liability - notice of injury. Every
contract insuring against liability for compensation or insurance policy evidencing the
same shall contain a clause to the effect that the insurance carrier shall be directly and
primarily liable to the employee and, in the event of death, to said employee's dependents
to pay compensation, if any, for which the employer is liable, thereby discharging to the
extent of such payment the obligations of the employer to the employee; that, as between
the employee and the insurance carrier, notice or knowledge of the occurrence of the
injury on the part of the employer shall be deemed notice or knowledge, as the case may
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be, on the part of the insurance carrier; that jurisdiction of the employer, for the purpose
of articles 40 to 47 of this title, shall be jurisdiction of the insurance carrier; and that the
insurance carrier, in all things, shall be bound by and subject to the orders, findings,
decisions, or awards rendered against the employer under the provisions of said articles.
Such policy shall also provide that the employee shall have a first lien upon any amount
which becomes owing to the employer from the insurance carrier, and the insurance
carrier shall pay the same directly to the employee or the employee's dependents, thereby
discharging to the extent of such payment the obligation of the employer to the employee.
The policy shall not contain any provisions relieving the insurance carrier from payment
when the employer becomes legally incapable or insolvent or is discharged in bankruptcy
or otherwise during the period that the policy is in operation or the compensation remains
owing.
8-44-106. Insurer violation - suspension or revocation of license. If any
insurance carrier intentionally, knowingly, or willfully violates any of the provisions of
articles 40 to 47 of this title, the commissioner of insurance, on the request of the director,
shall suspend or revoke the license or authority of such carrier to do a compensation
business in this state.
8-44-107. Right of insurer to examine books of employer. Any insurance
carrier operating under the workers' compensation act may apply to the commissioner of
insurance for permission to examine any of the books, payrolls, or other documents of any
employer insured by such carrier or of any contractor, subcontractor, lessee, sublessee, or
person covered by the employer's compensation insurance to determine the amount of
wage expenditure of such employer or of any contractor, subcontractor, lessee, sublessee,
or person during any period that such insureds were insured by the insurance carrier. The
commissioner of insurance may grant such carrier authority in writing to make the
investigation or may appoint any agents of the division of insurance to conduct the
investigation.
8-44-108. Repayments for misclassifications. (1) Every insurance carrier
authorized to transact business in this state, including Pinnacol Assurance, which insures
employers against liability for compensation under the provisions of articles 40 to 47 of
this title, is authorized to charge and collect any amount of money that should have been
included in premiums paid by an insured but were not included in such premiums as a
result of job misclassification. Upon written request by the employer, the issue of whether
a job misclassification occurred shall be determined in writing by the insurance company.
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The employer's request shall be made within thirty working days after the anniversary
date of the policy or the date of receipt by the employer of notice of a change in job
classification. The insurance company's determination shall be made within thirty days
after receipt of the employer's written request. An employer may appeal any
determination of an insurance company made pursuant to this subsection (1) to the
workers' compensation classification appeals board, pursuant to section 8-55-102. If it is
determined that a job misclassification occurred and that such misclassification was
caused by the failure of the insured to provide accurate or complete data in order to
determine the proper classification as requested by the insurance carrier, the repayment
may be collected during the term of the contract for such insurance plus an additional
reasonable time not to exceed twelve months.
(2) Any employer who has purchased insurance against liability for compensation
under the provisions of articles 40 to 47 of this title is authorized to recover any amount
of money which should not have been included in premiums paid by the employer but
which were included in such premiums as a result of job misclassification. The repayment
may be collected during the term of the contract for such insurance plus an additional
reasonable time not to exceed twelve months.
8-44-109. Notice - change in rate by classification - policyholder's right to
appeal classifications - availability of medical case management services. (1) Any
insurance carrier authorized to transact business in this state, including Pinnacol
Assurance, which insures employers against liability for compensation under the
provisions of articles 40 to 47 of this title, shall supply information regarding a change in
the rate by classification to any insured employer, if such employer has requested that
such information be supplied. Such information shall be supplied within thirty days
following release of such information to such insurer by the authorized rating
organization and following approval of such rate change by the division of insurance. As
soon as reasonably possible after the division of insurance's approval of a change in rate
by classification, the authorized rating organization shall disseminate notice of such
approval and change in rate.
(2) Every insurance carrier authorized to transact business in Colorado, including
Pinnacol Assurance, which insures employers against liability for compensation under the
provisions of articles 40 to 47 of this title, shall clearly and conspicuously inform
policyholders of their rights to appeal employee classification designations, the
procedures to be used for such an appeal, and the types of medical case management that
the carrier has available to employees to promote medical cost containment.
8-44-110. Notice of cancellation. Every insurance carrier authorized to transact
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business in this state, including Pinnacol Assurance, which insures employers against
liability for compensation under the provisions of articles 40 to 47 of this title, shall notify
any employer insured by the carrier or Pinnacol Assurance, and any agent or
representative of such employer, if applicable, by certified mail of any cancellation of
such employer's insurance coverage. Such notice shall be sent at least thirty days prior to
the effective date of the cancellation of the insurance. However, if the cancellation is
based on one or more of the following reasons, then such notice may be sent less than
thirty days prior to the effective date of the cancellation of the insurance: Fraud, material
misrepresentation, nonpayment of premium, or any other reason approved by the
commissioner of insurance.
8-44-111.
Workers' compensation insurance - deductibles definition. (1) (a) Any employer may agree, as a condition of any contract for the
insurance of compensation and benefits as provided in articles 40 to 47 of this title or
against liability therefor, to pay an amount not to exceed the split point approved by the
commissioner of insurance per claim toward the total amount of any claim payable under
articles 40 to 47 of this title. The amount of premium to be paid by an employer who
agrees to pay such deductible shall be reduced based upon such deductible in an amount
determined by the insurance carrier.
(b) As used in this subsection (1), "split point" means the amount of each loss
approved by the commissioner of insurance that an insurer may apply as the primary loss
in each workers' compensation claim. The full amount of primary losses counts in each
employer's experience modification calculation that determines the employer's percentage
credit or surcharge on workers' compensation coverage. The loss amount above the split
point is excess loss and constitutes part of each employer's experience modification
calculation.
(c) Nothing in this section abrogates an employer's responsibility to pay the full
amount of any compensation and benefits due under articles 40 to 47 of this title. It is a
violation of this title for an employer or, if insured, the insurer to require any employee to
pay any part of the compensation and benefits due under articles 40 to 47 of this title.
(d) It is a violation of this title for an employer or, if insured, the insurer to require
an employee to use any other type of insurance, regardless of whether it is provided as a
benefit of employment, or any other employment benefit, to pay any portion of any
compensation and benefits due under articles 40 to 47 of this title.
(e) Nothing in this subsection (1) allows a carrier to stop offering no-deductible
policies.
(1.5) Whenever any insurer, including Pinnacol Assurance created in section 8-45101, issues a workers' compensation policy in this state, and annually thereafter, the
insurer must issue a policy including the deductible provision if requested by the insured
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employer; except that the commissioner shall promulgate rules establishing criteria to
allow the insurer to deny a deductible policy to an employer based on financial inability to
reimburse the insurer for the deductible plan selected.
(2) The existence of an insurance contract with a deductible or the fact of payment
as a result of a deductible shall not affect the requirement of an employer to report an
injury or death to the division as required in section 8-43-103 (1).
(3) The deductible amounts paid by any employer under the provisions of this
section shall be excluded from consideration by insurance carriers authorized to transact
business in Colorado, including Pinnacol Assurance, which insures employers against
liability for compensation under the provisions of articles 40 to 47 of this title, in
establishing the modification factors based upon experience used by such insurance
carriers to determine premiums. For purposes of experience modifications, medical only
claims shall be calculated in the same manner as claims with indemnity payments.
(4) Every insurance carrier authorized to transact business in Colorado, including
Pinnacol Assurance, which insures employers against liability for compensation under the
provisions of articles 40 to 47 of this title, shall clearly and conspicuously inform
policyholders of the availability of the deductible option specified in subsection (1) of this
section.
8-44-112. Surcharge on workers' compensation insurance premiums workers' compensation cash fund. (1) (a) Notwithstanding the provisions of sections
10-3-209 (1) (c) and 10-6-128 (3), C.R.S., for the purpose of offsetting the direct and
indirect costs of the administration of the workers' compensation system, every person,
partnership, association, and corporation, whether organized under the laws of this state
or of any other state or country, every mutual company or association, every captive
insurance company, and every other insurance carrier, including Pinnacol Assurance,
insuring employers in this state against liability for personal injury to their employees or
death caused thereby under the provisions of the "Workers' Compensation Act of
Colorado" shall, as provided in this section, pay a surcharge upon the premiums received,
whether in cash or not, in this state, or on account of business done in this state, for such
insurance in this state, at a rate established by the director by rule, which surcharge shall
be reviewed and adjusted annually based upon appropriations made for the direct and
indirect costs of the administration of the workers' compensation system, as provided in
subsection (7) of this section. Such insurance carriers shall be credited with all cancelled
or returned premiums actually refunded during the year of such insurance.
(b) (I) For the purpose of funding the direct and indirect costs of the activities of
the division related to the "Workers' Compensation Cost Containment Act", article 14.5
of this title, there shall be added to the surcharge imposed pursuant to paragraph (a) of
this subsection (1) an increment not to exceed three-hundredths of one percent upon the
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premiums received, said surcharge to be reviewed and adjusted annually and paid over to
the division in the same manner as specified in this section for the surcharge.
(II) Notwithstanding any other provisions of this section, no employer acting as a
self-insurer under the provisions of the "Workers' Compensation Act of Colorado" shall
be subject to the increment added to the surcharge pursuant to subparagraph (I) of this
paragraph (b).
(III) All moneys collected pursuant to subparagraph (I) of this paragraph (b) shall
be transmitted to the state treasurer, who shall credit the same to the cost containment
fund, created in section 8-14.5-108.
(2) Every such insurance carrier shall, on July 1, 1987, and semiannually
thereafter, make a return, verified by affidavits of its president and secretary, or other
chief officers or agents, to the division of workers' compensation, stating the amount of
all such premiums received and credits granted during the period covered by such return.
Every insurance carrier required to make such return shall file the same with the division
within thirty days after the close of the period covered thereby and shall, at the same time,
pay to the division of workers' compensation a surcharge ascertained as provided in
subsection (1) of this section, less return premiums on cancelled policies.
(3) Every employer acting as a self-insurer under the provisions of the "Workers'
Compensation Act of Colorado" shall, under oath, report to the division of workers'
compensation the business payroll in such form as may be prescribed by the director and
at the times in this section provided for premium reports by insurance companies in
subsection (2) of this section. The division shall assess against such payroll a surcharge
for the purposes of this section ascertained as provided in subsection (2) of this section on
the basic premiums chargeable against the same or most similar industry or business
taken from the manual insurance rates, including any discount or experience modification
allowed, chargeable by the Pinnacol Assurance fund, and, upon receipt of notice from the
division of workers' compensation of the surcharge so assessed, every such self-insurer
shall, within thirty days after the receipt of such notice, pay to the division of workers'
compensation the surcharge so assessed.
(4) If any such insurance carrier or self-insurer fails or refuses to make the return
required by this article, the director shall assess the surcharge against such insurance
carrier or self-insurer at the rate provided for in this section on such amount of premium
as the director may deem just, and the proceedings thereof shall be the same as if the
return had been made.
(5) If any such insurance carrier or self-insurer withdraws from business in this
state before the surcharge falls due as provided in this section, or fails or neglects to pay
such surcharge, the director shall at once proceed to collect the same; and the director is
authorized to employ such legal processes as may be necessary for that purpose. Suit shall
be brought by the director in any of the courts of this state having jurisdiction.
(6) The director, in the enforcement of this section, shall have all of the powers
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granted to said director in the "Workers' Compensation Act of Colorado", and any
insurance carrier or self-insurer violating any of the provisions of this section, or failing
to pay the surcharge imposed in this section, is guilty of violation of said act and subject
to the penalties therein prescribed.
(7) (a) All moneys collected pursuant to this section shall be transmitted to the
state treasurer, who shall credit the same to the workers' compensation cash fund, which
fund is hereby created. The moneys in the workers' compensation cash fund shall be
subject to annual appropriation by the general assembly for the direct and indirect costs of
the administration of the "Workers' Compensation Act of Colorado", articles 40 to 47 of
this title. Any interest earned on the investment or deposit of moneys in the workers'
compensation cash fund shall remain in the fund and shall not revert to the general fund
of the state at the end of any fiscal year.
(b) Notwithstanding any provision of paragraph (a) of this subsection (7) to the
contrary, on March 5, 2003, the state treasurer shall deduct six million dollars from the
workers' compensation cash fund and transfer such sum to the general fund.
(c) Notwithstanding any provision of paragraph (a) of this subsection (7) to the
contrary, on March 30, 2009, the state treasurer shall deduct fifteen million seven hundred
thousand dollars from the workers' compensation cash fund and transfer such sum to the
general fund.
8-44-113. Data from insurance carriers and self-insured employers related to
workers' compensation - studies related to workers' compensation
system. (Repealed)
8-44-114. Determination of premium. The amount of the premium to be paid by
an employer for a contract of insurance of compensation and benefits as provided in
articles 40 to 47 of this title or against liability therefor shall be on the basis of the annual
expenditure of money by said employer for the services of persons engaged in such
employer's employment; except that no portion of such expenditure representing a per
diem payment shall be considered unless such payment is considered wages for federal
income tax purposes.
8-44-115. Calculation of premium - motor vehicle accidents. (1) The amount
by which an employer's experience rating is modified, if at all, as the result of a motor
vehicle accident in which an employee is injured or killed shall be reduced in accordance
with this section if:
(a) The employee is entitled to benefits under articles 40 to 47 of this title; and
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(b) The accident was not caused, wholly or in part, by the employee or the
employer; and
(c) The use of a motor vehicle is not an integral part of the employer's business, as
determined under rules promulgated by the commissioner of insurance under section 104-408 (5) (e), C.R.S.
(2) (a) Any modification of an employer's experience rating resulting from an
accident described in subsection (1) of this section shall reflect the deduction of a loss
limitation, the amount of which shall be determined by the commissioner of insurance
under rules adopted pursuant to section 10-4-408 (5) (e), C.R.S.
(b) All loss experience remaining after deduction of the loss limitation referred to
in paragraph (a) of this subsection (2) shall be distributed among all workers'
compensation classifications in use in the state as determined by the commissioner of
insurance. For purposes of such distribution, classifications of businesses of which use of
a motor vehicle is an integral part may be treated differently from classifications of
businesses of which use of a motor vehicle is not an integral part.
(3) This section applies to all insurers, including Pinnacol Assurance created in
section 8-45-101, offering workers' compensation insurance under articles 40 to 47 of this
title. The provisions of this section shall be disclosed to all policyholders annually.
8-44-116. Reversionary interests in indemnity benefits prohibited. No
provision in a contract for insurance regulated by this article or any contract ancillary to
such a contract, including specifically a contract setting up an annuity for indemnity
benefits, shall establish a reversionary interest in the insurer for the indemnity benefits.
Any such provision is void and unenforceable as against public policy.
PART 2
SELF-INSUREDS
8-44-201.
Employer as own insurance carrier - revocation of
permission. (1) The executive director has the discretion to grant to any employer who
has accepted the provisions of articles 40 to 47 of this title permission to be its own
insurance carrier for the payment of the compensation and benefits provided by said
articles. Such permission may be granted by the executive director after the filing by an
employer of such statement and the giving of such information as may be required by the
executive director. The executive director has the sole power to prescribe the rules,
regulations, orders, terms, and conditions upon which said permit shall be granted or
continued. Permission for self-insurance may be revoked at any time by the executive
director, and the employer, upon notice of revocation, shall immediately insure otherwise
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all liability.
(2) Notwithstanding the provisions of subsection (1) of this section, the executive
director shall not prescribe or apply security requirements in granting or continuing
permission for the self-insurance program of the department of human services
established pursuant to section 8-44-203 but shall provide instead for alternatives to such
security requirements including trust funds, surety bonds, excess insurance, or other
security acceptable to the executive director. The alternative security requirements
provided by this subsection (2) shall apply only to claims arising on or after July 1, 1985,
and before July 1, 1990. The trust fund in existence on May 24, 1990, pursuant to the trust
agreement between the department of human services, a third party administrator, and the
state treasurer, dated June 27, 1985, shall remain in existence through June 30, 1990.
(3) Notwithstanding the provisions of subsection (1) of this section, the executive
director shall not prescribe or apply security requirements in continuing permission for an
employer which is acting as its own insurance carrier on July 1, 1986, which are in excess
of those security requirements in effect on July 1, 1986, unless there is a substantial
change in the economic condition or potential liability of such employer.
(4) Notwithstanding the provisions of subsection (1) of this section, the executive
director shall not prescribe or apply security requirements in granting or continuing
permission for a self-insurance program established by the state pursuant to section 2430-1510.7, C.R.S.
8-44-202. Workers' compensation self-insurance fund - created. (1) The
executive director shall establish and collect such fees as the executive director
determines are necessary to administer this section, which fees shall not supplant funding
for any other function of the department of labor and employment. The fees established
pursuant to this subsection (1) shall not exceed two thousand dollars for an initial
application or for an annual review of any employer acting as a self-insurer under this
section.
(2) The executive director shall transmit any moneys received pursuant to
subsection (1) of this section to the state treasurer, who shall place such moneys in the
workers' compensation self-insurance fund, which fund is hereby created. The general
assembly shall make appropriations from such fund for the purposes of administering this
section.
8-44-203. Department of human services - self-insurance program. The
general assembly hereby finds and declares that a program shall be established by the
department of human services and the department of labor and employment to provide for
a self-insurance program for the department of human services, which shall apply only to
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claims arising on or after July 1, 1985, and before July 1, 1990.
8-44-204.
Public entities - self-insurance authorized for workers'
compensation - pooled insurance. (1) "Public entity", as used in this section, means and
includes any county, municipality, school district, and any other type of district or
authority organized pursuant to law.
(2) A public entity may, after receiving permission pursuant to section 8-44-101
(1) (c), act as its own insurance carrier for compensation and benefits. Any public entity
other than a school district may establish and maintain an insurance reserve fund for selfinsurance purposes and may include in the annual tax levy of the public entity such
amounts as are determined by its governing body to be necessary for the uses and
purposes of the insurance reserve fund, subject to the limitations imposed by section 291-301, C.R.S. School districts may establish and maintain an insurance reserve fund in
accordance with the provisions of section 22-45-103 (1) (e), C.R.S., using moneys
allocated thereto pursuant to the provisions of section 22-54-105 (2), C.R.S. In the event
that a public entity has no annual tax levy, it may appropriate from any unexpended
balance in the general fund such amounts as the governing body shall deem necessary for
the purposes and uses of the insurance reserve fund.
(3) Public entities may cooperate with one another to form a self-insurance pool to
provide the insurance coverage required by this article for the cooperating public entities.
Any such insurance pool shall be formed pursuant to the provisions of part 2 of article 1
of title 29, C.R.S. The provisions of articles 10.5 and 47 of title 11, C.R.S., shall apply to
moneys of such self-insurance pool.
(4) Any self-insurance pool authorized by subsection (3) of this section shall not
be construed to be an insurance company nor otherwise subject to the provisions of the
laws of this state regulating insurance or insurance companies; except that the pool shall
comply with the applicable provisions of sections 10-1-203 and 10-1-204 (1) to (5) and
(10), C.R.S.
(5) Prior to the formation of a self-insurance pool, there shall be submitted to the
commissioner of insurance a complete written proposal of the pool's operation, including,
but not limited to, the administration, claims adjusting, membership, plan for reinsurance,
and capitalization of the pool. The commissioner shall review the proposal within thirty
days after receipt to assure that proper insurance techniques and procedures are included
in the proposal. After such review, the commissioner shall have the right to approve or
disapprove the proposal. If the commissioner approves the proposal, the commissioner
shall issue a certificate of authority. The costs of such review shall be paid by the public
entities desiring to form such a pool.
(6) Each self-insurance pool for public entities created in this state shall file, with
the commissioner of insurance on or before March 30 of each year, a written report in a
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form prescribed by the commissioner, signed and verified by its chief executive officer as
to its condition.
(7) The commissioner of insurance, or any person authorized by the commissioner
of insurance, shall conduct an insurance examination at least once a year to determine that
proper underwriting techniques and sound funding, loss reserves, and claims procedures
are being followed. This examination shall be paid for by the self-insurance pool out of its
funds at the same rate as provided for foreign insurance companies under section 10-1204 (9), C.R.S.
(8) (a) The certificate of authority issued to a public entity under this section may
be revoked or suspended by the commissioner of insurance for any of the following
reasons:
(I) Insolvency or impairment;
(II) Refusal or failure to submit an annual report as required by subsection (6) of
this section;
(III) Failure to comply with the provisions of its own ordinances, resolutions,
contracts, or other conditions relating to the self-insurance pool;
(IV) Failure to submit to examination or any legal obligation relative thereto;
(V) Refusal to pay the cost of examination as required by subsection (7) of this
section;
(VI) Use of methods which, although not otherwise specifically proscribed by
law, nevertheless render the operation of the self-insurance pool hazardous, or its
condition unsound, to the public;
(VII) Failure to otherwise comply with the law of this state, if such failure renders
the operation of the self-insurance pool hazardous to the public.
(b) If the commissioner of insurance finds upon examination, hearing, or other
evidence that any participating public entity has committed any of the acts specified in
paragraph (a) of this subsection (8) or any act otherwise prohibited in this section, the
commissioner may suspend or revoke such certificate of authority if the commissioner
deems it in the best interest of the public. Notice of any revocation shall be published in
one or more daily newspapers in Denver which have a general state circulation. Before
suspending or revoking any certificate of authority of a public entity, the commissioner
shall grant the public entity fifteen days in which to show cause why such action should
not be taken.
(9) (a) Any self-insurance pool organized pursuant to this section may invest in
securities meeting the investment requirements established in part 6 of article 75 of title
24, C.R.S., and may also invest in membership claim deductibles and in any other security
or other investment authorized for such pools by the commissioner of insurance.
(b) Any public entity which is a member of a self-insurance pool which is
organized pursuant to this section or any instrumentality formed by two or more of such
members may invest in subordinated debentures issued by such self-insurance pool.
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(10) In addition to workers' compensation coverage pursuant to subsection (3) of
this section, a self-insurance pool authorized by subsection (3) of this section may provide
property coverage pursuant to section 29-13-102, C.R.S., and liability coverage pursuant
to section 24-10-115.5, C.R.S.
8-44-205.
Employers - self-insurance pools authorized for workers'
compensation. (1) "Employers", as used in this section, means a bona fide trade or
professional association or two or more employers which are engaged in the same or
similar type of business or are members of the same bona fide trade or professional
association.
(2) Employers may cooperate with one another to form a self-insurance pool to
provide the insurance coverage required by this article for cooperating employers.
(3) Any self-insurance pool authorized by subsection (2) of this section shall not
be construed to be an insurance company nor otherwise subject to the provisions of the
laws of this state regulating insurance or insurance companies; except that the pool shall
comply with the applicable provisions of sections 10-1-203 and 10-1-204 (1) to (5) and
(10), C.R.S., and shall be subject to proceedings authorized by part 5 of article 3 of title
10, C.R.S.
(4) Prior to the formation of a self-insurance pool, there shall be submitted to the
commissioner of insurance a complete written proposal of the pool's operation, including,
but not limited to, the administration, claims adjusting, membership, plan for reinsurance,
capitalization of the pool, and risk management programs. The commissioner shall review
the proposal within forty-five days after receipt to assure that proper insurance techniques
and procedures are included in the proposal. After such review, the commissioner shall
have the right to approve or disapprove the proposal. If the commissioner of insurance
has not disapproved the proposal within ninety days of receipt of the proposal, such
proposal shall be deemed approved. If the commissioner approves the proposal, the
commissioner shall issue a certificate of authority. The costs of such review shall be paid
by the employers desiring to form such a pool.
(5) Each self-insurance pool for employers created in this state shall file with the
commissioner of insurance, on or before March 30 of each year, a written report in a form
prescribed by the commissioner, signed and verified by its chief executive officer as to its
condition.
(6) The commissioner of insurance, or the commissioner's designee, shall conduct
an insurance examination at least once a year to determine that proper underwriting
techniques and sound funding, loss reserves, and claims procedures are being followed.
This examination shall be paid for by the self-insurance pool out of its funds at the same
rate as provided for foreign insurance companies under section 10-1-204 (9), C.R.S.
(7) (a) The certificate of authority issued to an employer self-insurance pool under
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this section may be revoked or suspended by the commissioner of insurance for any of the
following reasons:
(I) Insolvency or impairment;
(II) Refusal or failure to submit an annual report as required by subsection (5) of
this section;
(III) Failure to comply with the provisions of its own rules, resolutions, contracts,
or other conditions relating to the self-insurance pool;
(IV) Failure to submit to examination or any legal obligation relative thereto;
(V) Refusal to pay the cost of examination as required by subsection (6) of this
section;
(VI) Use of methods which, although not otherwise specifically proscribed by
law, nevertheless render the operation of the self-insurance pool hazardous, or its
condition unsound, to the public;
(VII) Failure to otherwise comply with the law of this state, if such failure renders
the operation of the self-insurance pool hazardous to the public.
(b) If the commissioner of insurance finds upon examination, hearing, or other
evidence that any participating employer self-insurance pool has committed any of the
acts specified in paragraph (a) of this subsection (7) or any act otherwise prohibited in
this section, the commissioner may suspend or revoke such certificate of authority if the
commissioner deems it in the best interest of the public. Notice of any revocation shall be
published in one or more daily newspapers in Denver which have a general state
circulation. Before suspending or revoking any certificate of authority of an employer
self-insurance pool, the commissioner shall grant the employer self-insurance pool fifteen
days in which to show cause why such action should not be taken.
(8) The commissioner of insurance may supervise or rehabilitate an employer selfinsurance pool pursuant to the provisions of parts 4 and 5 of article 3 of title 10, C.R.S.,
for any of the following reasons:
(a) Insolvency or impairment;
(b) Failure to comply with the provisions of its own rules, resolutions, contracts,
or other conditions relating to the self-insurance pool;
(c) Failure to submit to examination or any legal obligation relative thereto;
(d) Use of methods which, although not otherwise specifically proscribed by law,
nevertheless render the operation of the self-insurance pool hazardous, or its condition
unsound, to the public;
(e) Failure to otherwise comply with the law of this state, if such failure renders
the operation of the self-insurance pool hazardous to the public.
(9) The commissioner of insurance may promulgate reasonable rules and
regulations necessary to effectuate the purposes of this section.
(10) Any self-insurance pool or any trust which provides insurance coverage for
purposes of articles 40 to 47 of this title which is in existence and is operating prior to
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July 10, 1987, is not subject to the requirements of this section and may continue to
operate such pool or trust as authorized by law.
(11) Each self-insurance pool created under this section shall establish a trust
fund, on an annual basis, to provide payment of the total workers' compensation loss cost
incurred by all pool members within each given year. Aggregate excess insurance shall be
provided by each self-insurance pool to the statutory limit of coverage, attaching at the
maximum amount of each annual trust fund balance, or, in lieu thereof, the commissioner
of insurance shall set other security standards which assure payment of workers'
compensation in the event that a self-insurance pool disbands or defaults.
8-44-206. Guaranty fund - immediate payment fund - special funds board creation. (1) The general assembly hereby finds and declares that benefits awarded
under articles 40 to 47 of this title to claimants employed by self-insurers may be
unreasonably delayed or not paid at all if receipt of the proceeds of the bond required of
the self-insurer is delayed or if the self-insurer declares bankruptcy or has insufficient
reserves to cover the claim. The general assembly further finds and declares that the
creation of an immediate payment fund and a guaranty fund will assure prompt and
complete payment of benefits awarded to such claimants.
(2) Creation of special funds board - duties. (a) For the purposes of carrying
out this section, there is hereby created a special funds board which shall exercise its
powers and perform its duties and functions as specified in this subsection (2) under the
department of labor and employment as if the same were transferred to the department by
a type 2 transfer as such transfer is defined in the "Administrative Organization Act of
1968", article 1 of title 24, C.R.S. Said board shall be composed of five members: Four
members who are managers or employees of self-insured employers in good standing, two
of whom shall demonstrate knowledge of risk management and finance, and the executive
director.
(b) With the exception of the executive director, the board members shall be
appointed by the governor and approved by the senate. The terms of the members of the
board first appointed shall be four years, three years, two years, and one year,
respectively. Thereafter, the term for each appointed board member shall be four years.
Members of the board may be reappointed and the executive director shall serve
continuously.
(c) The members of the board shall receive no compensation but shall be
reimbursed for actual and necessary traveling and subsistence expenses incurred in the
performance of their duties as members of the board.
(d) (I) The board shall determine the assessments to be made pursuant to
subsections (3) and (4) of this section and shall determine the qualifications and
requirements for any claims administrators hired to adjust the claims of a self-insurer who
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fails to meet his obligations with respect to benefits awarded pursuant to articles 40 to 47
of this title.
(II) The board shall also participate, in an advisory capacity only, in matters
concerning the granting or termination of self-insurance permits and the setting of
security requirements.
(3) Immediate payment fund - assessments - creation of fund. (a) The board
shall impose an assessment upon each employer self-insured under section 8-44-201.
Assessments under this subsection (3) shall be based upon a ratio equal to the self-insured
employer's paid workers' compensation medical and indemnity losses for the most recent
self-insurance permit year divided by the aggregate sum of paid medical and indemnity
losses by all self-insured employers for that year. Such losses shall be determined on July
1, 1990, for the most recently completed permit year, and on the first day of July for each
year thereafter until the minimum fund balance has been reached. Contributions to the
fund shall not be assets of the self-insured employer.
(b) (I) All moneys received by the executive director pursuant to this subsection
(3) shall be deposited in the state treasury in the immediate payment fund, which fund is
hereby created, and all moneys credited to such fund shall be used solely for the
administration and payment of benefits to employees pursuant to this section. The general
assembly shall make annual appropriations out of such fund for the administration of the
fund. The moneys in such fund for the payment of benefits are hereby continuously
appropriated to the department for payment of such benefits. Any moneys not utilized in
the fund shall not revert to the general fund.
(II) The minimum fund balance shall be three hundred thousand dollars, to be
assessed during the first three years at the rate of one hundred thousand dollars annually.
Interest shall accrue to the fund to a maximum fund balance of one million dollars.
Thereafter, the fund balance shall be maintained at one million dollars by refunding the
excess funds to each self-insured employer, on a pro rata basis, based on that employer's
contribution.
(4) Guaranty fund - assessments - creation of fund. (a) When the board
determines that existing security held by an employer self-insured under section 8-44-201
is insufficient to meet its existing liability for workers' compensation benefits, the board
shall impose an assessment on each self-insured employer. The assessment shall be based
on a ratio which equals each self-insured employer's paid workers' compensation medical
and indemnity losses for the most recent self-insurance permit year divided by the
aggregate sum of paid medical and indemnity losses by all self-insured employers for that
year. If necessary, the executive director may direct the board to make an annual
assessment thereafter until such time as the present value of the guaranty fund, created in
paragraph (b) of this subsection (4), equals the total liability for workers' compensation
benefits which are in excess of the security held by the defaulting self-insured employers.
(b) (I) All moneys received by the executive director pursuant to this subsection
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(4) shall be deposited in the state treasury in the guaranty fund, which fund is hereby
created. Such moneys credited to the fund shall be used solely for the administration and
payment of benefits to employees pursuant to this section. The general assembly shall
make annual appropriations out of such fund for the administration of the fund. The
moneys in such fund for the payment of benefits are hereby continuously appropriated to
the department for payment of such benefits. Any moneys not utilized in the fund shall
not revert to the general fund.
(II) All interest shall accrue to the fund. No amounts shall be refunded until all
liability in excess of security held by self-insured employers has been discharged and until
the dates imposing limitations on actions, as specified in sections 8-43-103 and 8-43-303
have passed. When those conditions have been met, the remaining moneys in the fund
shall be refunded to each self-insured employer, on a pro rata basis, based on that
employer's contribution.
(c) Public entities self-insuring under section 8-44-201 shall be exempt from and
shall not participate in this subsection (4).
(5) The department shall select any claims administrators required under this
section based on the qualifications and requirements established by the board. For the
purpose of contracting for such services, the department shall not be subject to articles
101 to 114 of title 24, C.R.S.
ARTICLE 45
Pinnacol Assurance
8-45-101. Pinnacol Assurance - creation - powers and duties. (1) There is
hereby created Pinnacol Assurance, which shall be a political subdivision of the state and
shall operate as a domestic mutual insurance company except as otherwise provided by
law. Pinnacol Assurance shall not be an agency of state government, nor shall it be
subject to administrative direction by any state agency except as provided in this article,
and except for the purposes of the "Colorado Governmental Immunity Act", article 10 of
title 24, C.R.S. Pinnacol Assurance shall not be dissolved except by the general assembly.
Section 10-12-411, C.R.S., shall not apply to Pinnacol Assurance.
(2) (a) The powers of Pinnacol Assurance shall be vested in the board of directors
of Pinnacol Assurance, which shall have nine members. The members of the board shall
be appointed by the governor with the consent of the senate. Of the nine members, four
shall be employers whose liability under articles 40 to 47 of this title is insured by
Pinnacol Assurance with one of such employers to be a farmer or rancher. Three of the
nine members shall be employees of employers whose liability under articles 40 to 47 of
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this title is insured by Pinnacol Assurance. One of the nine members shall be experienced
in the management and operation of insurance companies as defined in section 10-1-102
(6), C.R.S. Such member shall not concurrently serve as an owner, a shareholder, an
officer, an employee, an agent of, or in any other capacity with any business which
competes with Pinnacol Assurance. One of the nine members shall be experienced in
finance or investments, but shall not be an employer whose liability under articles 40 to
47 of this title is insured by Pinnacol Assurance. The term of office for each such member
shall be five years. The appointees may serve on a temporary basis if the senate is not in
session when they are appointed until the senate is in session and is able to confirm such
appointments. Vacancies on the board shall be filled by appointment of the governor for
the remainder of any unexpired terms. The board shall elect a chairman annually from its
membership.
(b) The members of the board who were serving as of January 1, 2002, shall
continue to serve until the completion of each member's term. New members of the board
shall be appointed pursuant to paragraph (a) of this subsection (2).
(c) The board shall have the powers, rights, and duties as set forth in this article
and otherwise provided by law.
(3) Members of the board shall be compensated one hundred forty dollars per
diem plus their actual and necessary expenses. Per diem compensation, not to exceed
thirty days in any calendar year, shall be paid only when the board is transacting official
business.
(4) On and after July 1, 2002, the powers, duties, and functions formerly exercised
by the Colorado compensation insurance authority may be exercised by Pinnacol
Assurance.
(5) The board shall:
(a) (I) Appoint the chief executive officer of Pinnacol Assurance who shall serve
under contract and appoint, hire, or delegate the authority to hire such other staff as may
be necessary to carry out the duties of Pinnacol Assurance.
(II) If an executive officer of Pinnacol Assurance is appointed pursuant to
subparagraph (I) of this paragraph (a) and such executive officer appoints, hires, or
delegates duties to any other staff necessary to carry out the duties of Pinnacol Assurance,
and the executive officer or other staff receives total compensation, including bonuses or
deferred compensation, in an amount equal to or greater than one hundred fifty thousand
dollars annually, such compensation information shall be a public record.
(b) Develop and approve an annual budget;
(c) Establish general policies and procedures for the operation and administration
of Pinnacol Assurance;
(d) (Deleted by amendment, L. 2002, p. 1865, § 1, effective July 1, 2002.)
(e) Promulgate policies and procedures that establish the basis by which employer
premiums payable to Pinnacol Assurance are determined. The board may establish
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different rates for employers who meet the requirements established by the board for any
classification after complying with the requirements of part 4 of article 4 of title 10,
C.R.S., so long as those rates are not excessive, inadequate, or unfairly discriminatory.
(f) Offer to provide workers' compensation insurance and employer's liability
insurance covering any liability of Colorado employers on account of personal injuries
sustained by, or the death of, any employee. Nothing in this article shall be interpreted to
permit Pinnacol Assurance to provide any other type of insurance or to provide insurance
to employers that are not Colorado employers. Pinnacol Assurance shall not refuse to
insure any Colorado employer or cancel any insurance policy due to the risk of loss or
amount of premium, except as otherwise provided in this title.
(g) Review and streamline administrative procedures;
(h) Oversee the operations and make necessary personnel changes;
(i) Review the investigative procedures and implement changes to expedite
investigations;
(j) Review and recommend legislation pertaining to workers' compensation in
articles 40 to 47 of this title and to clarify legal concepts related thereto;
(k) Review the method of calculation of the experience modification factor with
the object of providing maximum incentives for job safety;
(l) Establish general policies and procedures by rule and regulation concerning
medical care cost containment practices under articles 40 to 47 of this title; and
(m) Post the date, time, and location of each board meeting on the Pinnacol
Assurance web site at least seven calendar days prior to the scheduled meeting.
(6) Article 4 of title 24, C.R.S., shall not apply to the promulgation of any policies
or procedures authorized by subsection (5) of this section.
(7) Pinnacol Assurance may sell services, including but not limited to medical bill
processing, that are developed pursuant to its powers under this article.
(8) Employees of Pinnacol Assurance shall be exempt from the state personnel
system but shall, by acceptance of employment, be subject to the provisions of article 51
of title 24, C.R.S. Pinnacol Assurance shall provide for the deduction of employer and
employee contributions from salary and for payment to the association of such deductions
and for any other payments that would be due from a state employer.
(9) Notwithstanding any provision of law to the contrary, the claim files of injured
employees, the policy files of employers, and all business records relating to the
determination of rates that are not required to be disclosed by any other insurance
company shall not be subject to the provisions of part 2 of article 72 of title 24, C.R.S.
(10) With respect to meetings of Pinnacol Assurance, matters relating to the claim
files of injured employees and policy files of employers shall not be subject to the
provisions of part 4 of article 6 of title 24, C.R.S.
(11) Pinnacol Assurance may enter into cooperative arrangements with any public
or private entity for the purpose of carrying out its powers, duties, and functions. Nothing
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in this section shall require or be interpreted to require an employer to provide health
insurance coverage for its employees.
(12) Notwithstanding the provisions of subsection (1) of this section, upon the
attainment of a reasonable surplus as set forth in section 8-45-111, the "Colorado
Governmental Immunity Act", article 10 of title 24, C.R.S., shall not apply to Pinnacol
Assurance.
(13) Any member of the board who owns at least ten percent of an entity that
enters into a contract with Pinnacol Assurance shall disclose the board member's
ownership interest in the entity. This disclosure shall be a public record.
8-45-102. Pinnacol Assurance fund created - control of fund. (1) There is
hereby created in the state treasury a fund, to be known as the Pinnacol Assurance fund,
for the benefit of injured and the dependents of killed employees, which shall be
administered in accordance with the provisions of this article by the board. Such
administration shall be without liability on the part of the state, beyond the amount of said
fund, constituted as provided in this article. The state shall have no liability for the
solvency or financial condition of the fund.
(2) The chief executive officer is vested with full power and jurisdiction over the
administration of Pinnacol Assurance and may appoint such subordinate officers as may
be necessary for the efficient operation of Pinnacol Assurance and may do and perform
all things, whether specifically designated in this article or in addition thereto, that are
necessary or convenient in the exercise of any power or jurisdiction over Pinnacol
Assurance in the administration thereof under the provisions of this article as fully and
completely as the head of a private insurance company might or could do, subject,
however, to all the provisions of this article and other applicable law.
(3) Control of all moneys in the Pinnacol Assurance fund shall be transferred to
the board, which shall administer the fund and use such moneys for the purposes of this
article.
(4) The Pinnacol Assurance fund shall be a continuing fund and shall consist of all
premiums received and paid into said fund for compensation insurance, all property and
securities acquired by and through the use of moneys belonging to said fund, and all
interest earned upon moneys belonging to said fund and deposited or invested. Said fund
shall be applicable to the payment of the salaries of the employees of the fund and to its
other operating expenses and to the payment of losses sustained or liabilities incurred
under the contracts or policies of insurance issued by Pinnacol Assurance in accordance
with the provisions of articles 40 to 47 of this title. All moneys in the fund previously
known as the Colorado compensation insurance authority fund shall be transferred into
the Pinnacol Assurance fund on July 1, 2002.
(5) The moneys in the Pinnacol Assurance fund shall be continuously available for
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the purposes of this article and shall not be transferred to or revert to the general fund of
the state at the end of any fiscal year. All revenues, moneys, and assets of Pinnacol
Assurance belong solely to Pinnacol Assurance. The state of Colorado has no claim to nor
any interest in such revenues, moneys, and assets and shall not borrow, appropriate, or
direct payments from such revenues, moneys, and assets for any purpose.
8-45-103. Board to fix rates - chief executive officer to administer rates - sue
and be sued - personal liability limited. (1) The board shall have full power and it is its
duty to fix and determine the rates to be charged by Pinnacol Assurance for compensation
insurance.
(2) The chief executive officer shall manage and conduct all business and affairs
in relation to the rates to be charged by Pinnacol Assurance for compensation insurance
which shall be conducted in the name of Pinnacol Assurance, and in that name, without
any other name, title, or authority, the chief executive officer may:
(a) (I) Sue and be sued in all the courts of this state, or of any other state, or of the
United States, and in actions arising out of any act, deed, matter, or thing made, omitted,
entered into, done, or suffered in connection with Pinnacol Assurance and the
administration, management, or conduct of the business or affairs relating thereto; and the
chief executive officer shall be authorized to employ counsel to represent Pinnacol
Assurance in any action.
(II) Nothing in this paragraph (a) shall be construed to waive any provisions of the
"Colorado Governmental Immunity Act", article 10 of title 24, C.R.S., nor shall it be
construed to waive immunity of the state of Colorado from suit in federal court,
guaranteed by the eleventh amendment to the constitution of the United States.
(b) The chief executive officer shall not, nor shall any officer or employee of
Pinnacol Assurance, or entities or parties with whom it contracts for services, be
personally liable in a private capacity for or on account of any act done or omitted or
contract or other obligation entered into or undertaken in an official capacity in good faith
and without intent to defraud in connection with the administration, management, or
conduct of Pinnacol Assurance, its business, or other affairs relating thereto.
(c) (Deleted by amendment, L. 2002, p. 1870, § 3, effective July 1, 2002.)
8-45-104. Blanks furnished by state. (Repealed)
8-45-105. Places of employment classified - amount of premiums. (1) The
board may classify the places of employment of employers insured by Pinnacol Assurance
into classes in accordance with the nature of the business in which they are engaged and
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the probable hazard or risk of injury to their employees. It shall determine the amount of
the premiums that such employers shall pay to Pinnacol Assurance, and may prescribe in
what manner such premiums shall be paid, and may change the amount thereof both in
respect to any or all of such employers as circumstances may require, and the condition of
their respective plants, establishments, or places of work in respect to the safety of their
employees may justify. All such premiums shall be levied on a basis that shall be fair,
equitable, and just as among such employers.
(2) (Deleted by amendment, L. 2002, p. 1871, § 5, effective July 1, 2002.)
8-45-106. Insurance at cost - board may impose surcharges. (1) It is the duty
of the board, in the exercise of the powers and discretion conferred upon it by articles 40
to 47 of this title, ultimately to fix and maintain, for each class of occupation, the lowest
possible rates of premium consistent with the maintenance of a solvent Pinnacol
Assurance fund, and the creation and maintenance of a reasonable surplus after the
payment of legitimate claims for injury and death, that may be authorized to be paid from
the Pinnacol Assurance fund for the benefit of injured and dependents of killed
employees.
(2) The board may impose a premium surcharge, not to exceed an additional fifty
percent, for up to twelve continuous months, as a condition precedent to insure or reinsure
an employer whose policy was canceled or terminated by any insurer for reasons of fraud
or intentional misrepresentation of a material fact; except that, if an employer disputes the
imposition of such surcharge, the employer may make a complaint to the commissioner of
insurance. If the commissioner of insurance determines that the board, in imposing a
premium surcharge, has engaged in any conduct in violation of part 11 of article 3 of title
10, C.R.S., the commissioner may take any action the commissioner deems appropriate
and authorized by law.
8-45-107. Basis of rates - reserve - surplus. (1) The rates shall be the percentage
of the payroll of any employer that, on the average, shall produce a sufficient sum to:
(a) Carry all claims to maturity such that the rates shall be based upon the reserve
and not upon the assessment plan;
(b) Produce a reasonable surplus as provided in articles 40 to 47 of this title, cover
the catastrophe hazard, and ensure the payment to employees and their dependents of the
compensation provided in said articles.
(2) In determining the amount of reserve to be laid aside to meet deferred
payments according to awards, such reserve may be ascertained by finding the present
worth of such deferred medical and indemnity payments calculated at a rate of interest not
higher than six percent per annum, and such calculations of disability indemnity benefits
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shall be made according to a table of mortality not lower than the American experience
table of mortality and, in the discretion of the board, by such other and further methods as
will result in the establishment of adequate reserves.
(3) The amounts raised for the Pinnacol Assurance fund shall ultimately become
neither more nor less than necessary to make the fund self-supporting, which includes the
attainment and maintenance of an adequate surplus as determined in accordance with
section 8-45-111, and the premiums or rates levied for such purpose shall be subject to
readjustment from time to time by the board as may become necessary.
8-45-108. Intentional misrepresentation by employer. (Repealed)
8-45-109. Rate schedules posted. (Repealed)
8-45-110.
(Repealed)
Board to keep accounts - readjustment by board of rates.
8-45-111. Portions of premiums paid carried to surplus. The board shall set
aside such proportion as it may deem necessary of the earned premiums paid into the
Pinnacol Assurance fund, as a contribution to the surplus of the fund.
8-45-112. Amendment of rates - distribution to policyholders. The board may
amend at any time the rates for any class. No contract of insurance between Pinnacol
Assurance and any employer shall be in effect until a policy or binder has been actually
issued by the board and the premium therefor paid as and when required by this article.
Not less often than once a year the chief executive officer shall tabulate the earned
premiums paid by policyholders of Pinnacol Assurance. Should the experience of the
Pinnacol Assurance fund show a credit balance and after payment of all amounts that
have fallen due because of operating expenses, injury, or death, and after setting aside
proper reserves, the board shall distribute such credit balance to the policyholders who
have a balance to their credit in proportion to the premium paid and losses incurred by
each such policyholder during the preceding insurance period. In the event any such
policyholder fails to renew a policy with Pinnacol Assurance for the period following the
period in which said dividends were earned, said policyholder shall be entitled to said
credit dividend if such policy is terminated in good standing. In the event an employer
actually discontinues business, said employer's policy shall be cancelled, and the
dividend, if any, when ascertained, shall be returned to the employer.
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8-45-113. New policies issued - when. Pinnacol Assurance shall not be required
to issue a new policy of insurance to an employer until all moneys due Pinnacol
Assurance have been paid, all premiums have been paid on all cancelled policies, and the
employer has complied with all provisions of such cancelled policies.
8-45-114. Adjustment of premiums. (Repealed)
8-45-115. Determination of premium - payment in advance - deductibles.
(Repealed)
8-45-116. Reinsurance. (Repealed)
8-45-117. Regulation by commissioner of insurance. (1) Pinnacol Assurance
shall be subject to regulation by the commissioner of insurance as provided in:
(a) Part 11 of article 3 of title 10, C.R.S., pertaining to unfair competition and
deceptive practices;
(b) Part 4 of article 4 of title 10, C.R.S., pertaining to rate regulation; however, if
the pure premium rates used by Pinnacol Assurance are the national council on
compensation insurance rates previously approved by the commissioner of insurance,
Pinnacol Assurance may use different pure premium rates for employers who meet the
requirements established by the board of directors after complying with the requirements
of part 4 of article 4 of title 10, C.R.S., concerning type II insurers;
(c) Sections 24-31-104.5, C.R.S.; 10-1-108 (7), 10-1-109, and 10-1-102, except
subsections (3) and (6), C.R.S.; 10-1-205 (1) to (6) and (8), C.R.S.; 10-3-109, C.R.S.,
except for the publication requirements; 10-3-118, C.R.S.; 10-3-128, C.R.S.; 10-3-202,
C.R.S.; 10-3-207, C.R.S.; 10-3-208, C.R.S.; 10-3-231, C.R.S.; 10-3-239, C.R.S.; 10-3701, C.R.S.; and part 8 of article 3 of title 10, C.R.S., except as these sections are
inconsistent with the provisions of this article.
(2) (Deleted by amendment, L. 97, p. 936, § 5, effective May 21, 1997.)
(3) Nothing in this section shall be construed to subject Pinnacol Assurance to any
premium tax assessed pursuant to title 10, C.R.S.
(4) The cost of examinations performed in accordance with section 8-45-121 (4)
shall be billed by the commissioner to Pinnacol Assurance at prevailing hourly rates
based upon time records kept by the commissioner. Any such payment received by the
commissioner is hereby appropriated to the division of insurance in addition to any other
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funds appropriated for its normal operation.
(5) At such time as a reasonable surplus of the Pinnacol Assurance fund is reached
pursuant to section 8-45-111, Pinnacol Assurance shall be subject to regulation by the
commissioner of insurance as provided in section 10-1-205 (7) and part 4 of article 3 of
title 10, C.R.S., to the extent consistent with the provisions of this article.
(6) Notwithstanding the provisions of sections 8-45-102 (1) and 8-45-118, upon
the attainment of a reasonable surplus as set forth in section 8-45-111 and verified by
audit and examination performed in accordance with section 8-45-121, all of the moneys
in the Pinnacol Assurance fund shall be transferred out of the state treasury and into the
custody of the board of Pinnacol Assurance. The board shall thereafter control the
investment of the fund pursuant to the requirements set forth in part 2 of article 3 of title
10, C.R.S.
(7) Notwithstanding the provisions of sections 8-45-102 (1) and 8-45-118, upon
the transfer of the moneys in the Pinnacol Assurance fund in accordance with subsection
(6) of this section, the board of Pinnacol Assurance shall make all disbursements, and
such disbursements shall not be made upon state warrants.
(8) Notwithstanding the provisions of sections 8-45-102 (1) and 8-45-119, upon
the transfer of the moneys in the Pinnacol Assurance fund in accordance with subsection
(6) of this section, the state treasurer shall not be required to give any bond as custodian
of the Pinnacol Assurance fund.
(9) After the transfer of the moneys in the Pinnacol Assurance fund in accordance
with subsection (6) of this section, if the commissioner of insurance places Pinnacol
Assurance under direct supervision pursuant to the provisions of section 10-3-405,
C.R.S., the moneys in the Pinnacol Assurance fund may be transferred back to the
custody of the state treasury pursuant to sections 8-45-102 (1), 8-45-118, and 8-45-119,
and the state treasurer shall control the investment of the fund pursuant to section 8-45120. The transfer of funds shall be under such conditions and within such time period as
the state treasurer and the commissioner of insurance deem appropriate.
(10) Pinnacol Assurance shall not acquire or control any other insurer.
8-45-118. Treasurer custodian of fund - disbursements. (1) The state treasurer
shall be the custodian of the Pinnacol Assurance fund, and all disbursements therefrom
shall be paid either by the state treasurer upon warrants drawn in accordance with law
upon vouchers issued by the board upon order of the chief executive officer, or by or
under the direction of the chief executive officer in such other manner as the state
treasurer may approve. In every case occurring in which a warrant has been drawn in
accordance with law against the state treasurer upon vouchers issued by the board for
payment of any sum of money from the Pinnacol Assurance fund, or when another form
of payment has been made from such fund by or under the direction of the chief executive
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officer, and the time within which said warrant or other form of payment shall be
presented for payment in order to be valid has not been stamped, printed, or written across
the face thereof, or otherwise specified, and a period of six months has elapsed since the
issuance of such warrant or other form of payment, during which no person entitled
thereto, or the proceeds thereof, has presented the same to the state treasurer for payment,
or appeared to claim the funds so authorized to be paid from the hands of the state
treasurer or the chief executive officer, such warrant or other form of payment may in the
discretion of the chief executive officer be posted for cancellation, and thereafter
cancelled and set aside.
(2) In every such case in which it is proposed to cancel any such warrant, the chief
executive officer shall cause a notice to be drawn in duplicate, with a description of said
warrant containing the amount, number, date of issuance, and name of payee, and shall
cause one copy of said notice to be posted in a conspicuous place that is open to the
public in the office of said board and one copy to be delivered to the state treasurer. If, at
the end of one month after the posting of such notice and the delivery of a copy to the
state treasurer, such warrant is not presented for payment and no person entitled to the
proceeds thereof appears to claim the funds so authorized to be paid in said warrant, said
warrant may be cancelled as provided in this section.
(3) (a) The state treasurer shall, upon the request of the chief executive officer,
transfer any such funds held to the credit of or for the payment of such warrant back to
the credit of the Pinnacol Assurance fund. Except as otherwise provided in paragraph (b)
of this subsection (3), if at any time thereafter application shall be made for the reissuance
of such warrant, the same may be reissued, if the claim that it represents appears to be
valid and still outstanding. Such reissued warrant shall be made payable from the moneys
on deposit in the Pinnacol Assurance fund and shall be made payable to the person
entitled to the proceeds thereof.
(b) For warrants issued on or after August 6, 2003, the funds transferred pursuant
to paragraph (a) of this subsection (3) shall be subject to the provisions of the "Unclaimed
Property Act", article 13 of title 38, C.R.S., and for purposes of this paragraph (b),
Pinnacol Assurance shall be considered an insurance company as defined in section 3813-102 (6.5), C.R.S.
(4) Except as provided in section 8-45-117, the powers and discretion granted in
this section to the chief executive officer and the state treasurer shall obtain in all cases
relating to the warrants or other forms of payment drawn on the Pinnacol Assurance fund,
anything to the contrary in any statute notwithstanding.
8-45-119. State treasurer to give separate bond as custodian. (1) The state
treasurer shall give a separate and additional bond in such amount as may be fixed by the
board with sureties to be approved by the governor, conditioned for the faithful
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performance of the state treasurer's duties as custodian of the Pinnacol Assurance fund,
and as custodian of all the bonds, warrants, investments, and moneys of, or belonging to,
said Pinnacol Assurance fund, subject to all provisions of law governing bonds of the
state treasurer. The premium on said bond shall be paid out of the earnings of the
Pinnacol Assurance fund.
(2) The state treasurer shall give a separate and additional bond in such amount as
may be fixed by the executive director of the department of labor and employment with
sureties to be approved by the governor, conditioned for the faithful performance of the
state treasurer's duties as custodian of the funds under the jurisdiction of the director of
the division of workers' compensation, and as custodian of all the bonds, warrants,
investments, and moneys of, or belonging to, the funds under the jurisdiction of the
director of the division of workers' compensation, subject to all provisions of law
governing bonds of the state treasurer. The premium on said bond shall be paid out of the
earnings of the funds under the jurisdiction of the director of the division of workers'
compensation on a pro rata basis.
8-45-120. State treasurer to invest funds. (1) Except as provided in subsection
(2) of this section, the state treasurer, after consulting with the board of directors or the
board's designated committee as to the overall direction of the portfolio, shall invest any
portion of the Pinnacol Assurance fund, including its surplus or reserves, which is not
needed for immediate use. Such moneys may be invested in the types of investments
authorized in sections 24-36-109, 24-36-112, and 24-36-113, C.R.S. Such moneys may
also be invested in common and preferred stock in the same manner as a domestic
insurance company pursuant to section 10-3-226, C.R.S. The state treasurer shall
determine the appropriate percentage of the fund, not to exceed one hundred percent of
the surplus, to be invested in common and preferred stock and the appropriate level of
risk for such investments. The state treasurer may make such investments in the form of
mutual funds and may contract with private professional fund managers and employ
portfolio managers.
(2) Subject to approval by the board, the chief executive officer may authorize and
direct the state treasurer to invest a portion of the funds in the Pinnacol Assurance fund
for the purchase of real property, to house, contain, and maintain the offices and
operational facilities of Pinnacol Assurance as may be deemed necessary to accommodate
its immediate and reasonably anticipated future needs. The chief executive officer is
authorized to purchase such real property, buildings, and improvements thereon. Title to
such real property, buildings, and improvements thereon shall vest in Pinnacol Assurance,
and such assets shall be a part of the Pinnacol Assurance fund. The chief executive officer
may lease or rent space not needed for the immediate requirements of Pinnacol Assurance
in such real property to other public agencies or private businesses. Moneys received from
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such rental or lease of space and moneys appropriated by the general assembly for rental
or lease of space in such real property shall be deposited with the state treasurer for credit
to the Pinnacol Assurance fund. The chief executive officer shall not sell or otherwise
dispose of any property, buildings, or improvements thereon so acquired, without consent
of the board, and the moneys received from such sale or disposition shall be credited to
the account of the Pinnacol Assurance fund.
(3) Repealed.
8-45-121. Visitation of fund by commissioner of insurance - annual audit examination. (1) Pinnacol Assurance shall be open to visitation by the commissioner of
insurance at all reasonable times, and the commissioner of insurance shall require from
the chief executive officer reports as to the condition of Pinnacol Assurance, as required
by law to be made by other insurance carriers doing business in this state insofar as
applicable to Pinnacol Assurance.
(2) An annual financial audit and, in 2009, a performance audit of Pinnacol
Assurance shall be made as soon as practicable by the state auditor, such audits to
include, but not be limited to, executive compensation, premium rate structure, known
loss reserves, incurred but not reported losses, and injured workers' claims experience. In
conducting such audits, the state auditor may employ a firm of auditors and actuaries, or
both, with the necessary specialized knowledge and experience. The cost of such annual
audit shall be paid from the operating funds of Pinnacol Assurance. The state auditor shall
report his or her findings from such audits, along 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. The state
auditor shall have continuing authority to conduct performance audits of Pinnacol
Assurance as the state auditor deems appropriate. The cost of performance audits shall be
paid from the operating funds of Pinnacol Assurance.
(3) (Deleted by amendment, L. 2002, p. 1879, § 20, effective July 1, 2002.)
(4) At least once every three years, the commissioner of insurance shall conduct
an examination of said fund, such examination to be conducted in the same manner as an
examination of a private insurance carrier. With respect to such examination, the
provisions of section 10-1-204, C.R.S., shall be applicable. The commissioner of
insurance shall transmit a copy of the commissioner's examination to the governor, the
state auditor, the general assembly, the executive director of the department of labor and
employment, and the chief executive officer.
8-45-122. Annual report. (1) The chief executive officer of Pinnacol Assurance
shall submit an annual report to the governor; the business affairs and labor committee of
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the house of representatives; the business, labor, and technology committee of the senate;
and the health and human services committees of the house of representatives and the
senate, or their successor committees, reporting on the business operations, resources, and
liabilities of the Pinnacol Assurance fund.
(2) The report required in subsection (1) of this section shall include the following
information for the previous calendar year:
(a) The number of policies held by Pinnacol Assurance;
(b) The total assets of Pinnacol Assurance;
(c) The amount of reserves;
(d) The amount of surplus;
(e) The number of claims filed;
(f) The number of claims admitted or contested within the twenty-day period
pursuant to section 8-43-203, specifying the number of contested claims that are medical
only and those that are indemnity claims;
(g) The number of medical procedures denied;
(h) The amount of total compensation each executive officer or staff member
receives, including bonuses or deferred compensation;
(i) The amount spent on commissions;
(j) The amount paid to trade associations for marketing fees;
(k) All information relating to bonus programs; and
(l) Any other information the chief executive officer deems relevant to the report.
8-45-123. Change of names - direction to revisor. The revisor of statutes is
authorized to change all references to the Colorado compensation insurance authority in
the "Workers' Compensation Act of Colorado" and everywhere else a reference is
contained in the Colorado Revised Statutes to Pinnacol Assurance and to change all
references to the Colorado compensation insurance authority fund in the "Workers'
Compensation Act of Colorado" and everywhere else a reference is contained in the
Colorado Revised Statutes to the Pinnacol Assurance fund.
8-45-124. Review of cost-effectiveness of use of national council on
compensation insurance by the authority. (Repealed)
8-45-125. Legislative interim committee on operation of Pinnacol Assurance creation - members - study - report - repeal. (Repealed)
ARTICLE 46
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Specific Insurance Funds
PART 1
SUBSEQUENT INJURY FUND
8-46-101. Subsequent injury fund. (1) (a) In a case where an employee has
previously sustained permanent partial industrial disability and in a subsequent injury
sustains additional permanent partial industrial disability and it is shown that the
combined industrial disabilities render the employee permanently and totally incapable of
steady gainful employment and incapable of rehabilitation to steady gainful employment,
then the employer in whose employ the employee sustained such subsequent injury shall
be liable only for that portion of the employee's industrial disability attributable to said
subsequent injury, and the balance of compensation due such employee on account of
permanent total disability shall be paid from the subsequent injury fund as is provided in
this section.
(b) (I) In addition to such compensation and after the completion of the payments
therefor, the employee shall continue to receive compensation at said employee's
established compensation rate for permanent total disability until death out of a special
fund to be known as the subsequent injury fund, hereby created for such purpose. The
subsequent injury fund shall be funded pursuant to the provisions of section 8-46-102.
(II) The unrestricted year-end balance of the subsequent injury fund, created
pursuant to subparagraph (I) of this paragraph (b), for the 1991-92 fiscal year shall
constitute a reserve, as defined in section 24-77-102 (12), C.R.S., and, for purposes of
section 24-77-103, C.R.S.:
(A) Any moneys credited to the subsequent injury fund in any subsequent fiscal
year shall be included in state fiscal year spending, as defined in section 24-77-102 (17),
C.R.S.; and
(B) Any transfers or expenditures from the subsequent injury fund in any
subsequent fiscal year shall not be included in state fiscal year spending, as defined in
section 24-77-102 (17), C.R.S., for such fiscal year.
(1.5) Notwithstanding any provision of this section to the contrary, on May 1,
2003, the state treasurer shall deduct twenty million dollars from the subsequent injury
fund and transfer such sum to the general fund.
(1.7) Notwithstanding any provision of this section to the contrary, on March 30,
2009, the state treasurer shall deduct twenty-six million five hundred thousand dollars
from the subsequent injury fund and transfer such sum to the general fund.
(2) If an employee entitled to additional benefits, as provided in this section,
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obtains employment while receiving compensation from the subsequent injury fund, such
employee shall be compensated out of said fund at the rate of one-half of said employee's
average weekly wage loss, subject to the maximum and minimum provisions of the
workers' compensation act, during such period of employment.
(3) In case payment is or has been made under the provisions of this section and
dependency later is shown or if payment is made by mistake or inadvertence or under
such circumstances that justice requires a refund thereof, the division is authorized to
refund such payment to the employer or, if insured, the employer's insurance carrier.
(4) (a) The sums provided for the subsequent injury fund created by this section
shall be used to pay the costs related to the administration of the fund and to make such
compensation payments as may be required by the provisions of articles 40 to 47 of this
title.
(b) Moneys in the subsequent injury fund are continuously appropriated to the
division for the payment of benefits as provided in this section and legal fees.
(5) The director shall administer and conduct all matters involving the subsequent
injury fund in the name of the division, and, in that name and without any other name,
title, or authority, the director may:
(a) (I) Sue and be sued in all the courts of this state, of any other state, or of the
United States and in actions arising out of any act, deed, matter, or thing made, omitted,
entered into, done, or suffered in connection with the subsequent injury fund and the
administration or conduct of matters relating thereto, including the authority to employ
counsel to represent the fund in any action.
(II) Nothing in this paragraph (a) shall be construed to waive any provisions of the
"Colorado Governmental Immunity Act", article 10 of title 24, C.R.S., nor shall it be
construed to waive immunity of the state of Colorado from suit in federal court,
guaranteed by the eleventh amendment to the constitution of the United States.
(b) Make and enter into contracts or obligations relating to the subsequent injury
fund as authorized or permitted under the provisions of articles 40 to 47 of this title, but
neither the director nor any officer or employee of the division shall be personally liable
in any private capacity for or on account of any act done or omitted or contract or other
obligation entered into or undertaken in an official capacity in good faith and without
intent to defraud in connection with the administration or conduct of the subsequent
injury fund, its business, or other affairs relating thereto.
8-46-102. Funding for subsequent injury fund and major medical insurance
fund. (1) (a) For every compensable injury resulting in death wherein there are no
persons either wholly or partially dependent upon the deceased, the employer or the
employer's insurance carrier, if any, shall pay to the division the sum of fifteen thousand
dollars, not to exceed one hundred percent of the death benefit, to be transmitted to the
Colorado Revised Statutes 2013
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state treasurer, as custodian, and credited by the state treasurer to the subsequent injury
fund. In the event that there are only partially dependent persons dependent upon the
deceased, the employer or the employer's insurance carrier, if any, shall first pay such
benefits to such partial dependents and shall transmit the balance of the sum of fifteen
thousand dollars to the state treasurer, as custodian, who shall credit the same to the
subsequent injury fund.
(b) In the event that the deceased is a minor with no persons either wholly or
partially dependent upon the deceased, the employer or the employer's insurance carrier,
if any, shall pay to the parents of the deceased the sum of fifteen thousand dollars, not to
exceed one hundred percent of the death benefit. In the event that there are no surviving
parents, the employer or the employer's insurance carrier, if any, shall pay such benefits to
the division, to be transmitted to the state treasurer, as custodian, and credited by the state
treasurer to the subsequent injury fund. In the event that there are persons only partially
dependent upon the deceased, the employer or the employer's insurance carrier, if any,
shall first pay such benefits to such partially dependent persons and shall pay the balance
to the surviving parents of the deceased, or in the event that there are no surviving
parents, the remaining balance shall be paid to the division, to be transmitted to the state
treasurer, as custodian, who shall credit the same to the subsequent injury fund.
(2) (a) (I) Notwithstanding sections 10-3-209 (1) (c) and 10-6-128 (3), C.R.S., for
the purpose of funding the financial liabilities of the subsequent injury fund pursuant to
this section and of the major medical insurance fund pursuant to section 8-46-202, every
person, partnership, association, and corporation, whether organized under the laws of
this state or of any other state or country, every mutual company or association, every
captive insurance company, and every other insurance carrier, including Pinnacol
Assurance, insuring employers in this state against liability for personal injury to their
employees or death caused thereby under the provisions of articles 40 to 47 of this title
shall, as provided in this subsection (2), be levied a tax upon the premiums received in
this state, whether or not in cash, or on account of business done in this state for such
insurance in this state at a rate determined by the director to generate sufficient revenue
for claim payments and direct and indirect costs of administration that are anticipated to
be submitted in the following state fiscal year for which such funds are liable. In
determining the rate, the director shall, in addition to revenue for claim payments and
direct and indirect costs of administration that are anticipated to be due in the following
state fiscal year, maintain a cash balance in both the major medical insurance fund and the
subsequent injury fund of an amount of otherwise unrestricted revenues equal to
approximately one year's worth of claim payments and direct and indirect administrative
costs. Such insurance carriers shall be credited with all cancelled or returned premiums
actually refunded during the year of such insurance.
(II) Repealed.
(b) Every such insurance carrier shall, on July 1, 1988, and semiannually
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thereafter, make a return, verified by affidavits of its president and its secretary or by
affidavits of its other chief officers or agents, to the division, stating the amount of all
such premiums received and credits granted during the period covered by such return.
Every insurance carrier required to make such return shall file the same with the division
within thirty days after the close of the period covered thereby and shall, at the same time,
pay to the division a tax ascertained as provided in paragraph (a) of this subsection (2),
less return premiums on cancelled policies.
(c) Every employer acting as a self-insurer under the provisions of articles 40 to
47 of this title shall, under oath, report to the division the employer's payroll in such form
as may be prescribed by the director and at the times specified for premium reports by
insurance companies in paragraph (b) of this subsection (2). The division shall assess
against such payroll a tax for the purposes of paragraph (b) of this subsection (2) on the
basic premiums chargeable against the same or most similar industry or business taken
from the manual insurance rates, including any discount or experience modification
allowed, chargeable by Pinnacol Assurance, and, upon receipt of notice from the division
of the tax so assessed, every such self-insurer shall, within thirty days after the receipt of
such notice, pay to the division the tax so assessed.
(d) If any such insurance carrier or self-insurer fails or refuses to make the return
or report required by paragraph (b) or (c) of this subsection (2), the director shall assess
the tax against such insurance carrier or self-insurer at the rate provided for in this
subsection (2) on such amount of premium as the director may deem just, and the
proceedings thereof shall be the same as if the return had been made.
(e) If any such insurance carrier or self-insurer withdraws from business in this
state before the tax provided for in this subsection (2) falls due as provided in this section,
or fails or neglects to pay such tax, the director shall proceed at once to collect the same;
and the director is authorized to employ such legal processes as may be necessary for that
purpose. Suit shall be brought by the director in any of the courts of this state having
jurisdiction.
(f) The director, in the enforcement of this subsection (2), shall have all of the
powers granted in articles 40 to 47 of this title, and any insurance carrier or self-insurer
who violates any of the provisions of this subsection (2) or fails to pay the tax thereby
imposed is guilty of a violation of said articles and shall be subject to the penalties therein
prescribed.
(g) All moneys collected pursuant to this subsection (2) shall be transmitted to the
state treasurer, as custodian, who shall credit the same to the subsequent injury fund and
to the major medical insurance fund as determined by the director in accordance with
subsection (3) of this section. Any interest earned on the investment or deposit of moneys
in said funds shall remain in the funds and shall not revert to the general fund of the state
at the end of any fiscal year.
(3) (a) As determined by the director, a portion of the revenue received each year
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pursuant to subsection (2) of this section shall be deposited into the subsequent injury
fund, established in section 8-46-101 (1) (b), and a portion shall be deposited into the
major medical insurance fund, established in section 8-46-202 (1). In addition, the
director may move revenue between the funds when the director determines that doing so
is necessary. The director shall continue to establish a surcharge rate pursuant to
subsection (2) of this section until the balance in both such funds is sufficient to meet the
future claim payments plus the amount necessary to pay the direct and indirect costs of
administration of the funds, at which time the surcharge rate established in paragraph (a)
of subsection (2) of this section shall be reduced to zero.
(b) For the purpose of determining the proper allocation of the surcharge and
making the estimates contemplated in paragraph (a) of this subsection (3), the director
shall contract for the services of qualified private actuaries.
8-46-103. State treasurer to invest funds. (1) The state treasurer shall invest any
portion of the subsequent injury fund, including its surplus and reserves, which the
division determines is not needed for immediate use. All interest earned upon such
invested portion shall be credited to the fund and used for the same purposes and in the
same manner as other moneys in the fund. Such moneys may be invested in the types of
investments authorized in sections 24-36-109, 24-36-112, and 24-36-113, C.R.S.
(2) Repealed.
8-46-104. Closure of fund. No cases shall be accepted into the subsequent injury
fund for injuries occurring on or after July 1, 1993, or for occupational diseases occurring
on or after April 1, 1994. When all payments have been made for all cases accepted into
the fund, any remaining balance shall revert to the general fund.
8-46-105. Calculation of premium - permanent total disability - employer
may request examination. (1) Effective July 1, 1993, in any case in which an employee
previously has sustained permanent partial disability and, in a subsequent injury, sustains
additional permanent partial disability and it is shown that the combined industrial
disabilities render the employee permanently and totally disabled, then the premiums of
the employer in whose employ the employee sustained such subsequent injury shall be
determined only on the basis of the impairment rating for such subsequent injury and not
on the basis of the employee's permanent total disability. If such employer disputes the
impairment rating for the subsequent injury, the employer shall request an independent
medical examination pursuant to the procedures set forth in section 8-42-107.2. The
finding of the independent medical examiner regarding the impairment rating may be
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overcome only by clear and convincing evidence. The total cost of the employee's
permanent total disability shall not be considered in determining the employer's
premiums, but shall be considered by the commissioner of insurance in setting rates.
(2) In any case in which an employee becomes disabled by an occupational
disease and the employer is liable for benefits pursuant to section 8-41-304 (2), then the
premiums of the employer in whose employ the employee became disabled shall be
determined only on the basis of the impairment rating for the portion of the occupational
disease attributable to such employer and not on the basis of the combination of such
portion and any prior impairment resulting from such occupational disease. For the
purposes of premium calculations, if such employer disputes the impairment rating for the
occupational disease, the employer shall request an independent medical examination
pursuant to the procedures set forth in section 8-42-107.2. The finding of the independent
medical examiner regarding the impairment rating may be overcome only by clear and
convincing evidence. The total cost of the employee's occupational disease shall not be
considered in determining the employer's premiums, but shall be considered by the
commissioner of insurance in setting rates.
8-46-106. Abatement of taxes - independent review of fund. The funding
provisions of section 8-46-102, including the provisions relating to the assessment and
levying of taxes, shall cease to be effective when an independent actuary, retained by the
division for such purpose, determines that the fund has sufficient resources to pay
benefits for injuries occurring prior to July 1, 1993, and occupational diseases occurring
prior to April 1, 1994.
8-46-107. Report to general assembly and governor. (Repealed)
8-46-108. Legislative council study of subsequent injury fund. (Repealed)
8-46-109. Legislative declaration - claims management. (1) The general
assembly finds and declares that the purpose of this section is to provide for prompt,
efficient, and fair settlement of all pending claims and the closure of both the subsequent
injury fund and the major medical insurance fund as soon as is practicable.
(2) As necessary to augment the division's regular staff, the director shall contract
for the services of qualified specialists in the area of settlements, who shall, on the
director's behalf, negotiate for and enter into settlements of claims of the subsequent
injury fund and the major medical insurance fund for present value whenever possible.
(3) Repealed.
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PART 2
COLORADO MAJOR MEDICAL
INSURANCE FUND ACT
8-46-201. Short title. This part 2 shall be known and may be cited as the
"Colorado Major Medical Insurance Fund Act".
8-46-202. Major medical insurance fund - tax imposed - returns. (1) (a) There
is hereby established a major medical insurance fund to defray medical, surgical, dental,
hospital, nursing, and drug expenses and expenses for medical, hospital, and surgical
supplies, crutches, apparatus, and vocational rehabilitation, which shall include tuition,
fees, transportation, and weekly maintenance equivalent to that which the employee
would receive under section 8-42-105 for the period of time that the employee is
attending a vocational rehabilitation course, which expenses are in excess of those
provided under the "Workers' Compensation Act of Colorado" for employees who have
established their entitlement to disability benefits under said act, whether necessary to
promote recovery, alleviate pain, or reduce disability.
(b) The unrestricted year-end balance of the major medical insurance fund, created
pursuant to paragraph (a) of this subsection (1), for the 1991-92 fiscal year shall
constitute a reserve, as defined in section 24-77-102 (12), C.R.S., and, for purposes of
section 24-77-103, C.R.S.:
(I) Any moneys credited to the major medical insurance fund in any subsequent
fiscal year shall be included in state fiscal year spending, as defined in section 24-77-102
(17), C.R.S., for such fiscal year; and
(II) Any transfers or expenditures from the major medical insurance fund in any
subsequent fiscal year shall not be included in state fiscal year spending, as defined in
section 24-77-102 (17), C.R.S., for such fiscal year.
(c) Moneys in the major medical insurance fund are continuously appropriated to
the division for the payment of benefits as provided in this section and legal fees.
(1.5) (a) Notwithstanding any provision of this section to the contrary, on May 1,
2003, the state treasurer shall deduct one hundred fifty million dollars from the major
medical insurance fund and transfer such sum to the general fund.
(b) On July 1, 2003, the state controller shall transfer ten million dollars from the
general fund to the major medical insurance fund.
(1.6) Notwithstanding any provision of this section to the contrary, on March 30,
2009, the state treasurer shall deduct sixty-nine million five hundred thousand dollars
from the major medical insurance fund and transfer such sum to the general fund.
(1.7) Notwithstanding any provision of this section to the contrary, on March 31,
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2010, the state treasurer shall deduct twenty-six million five hundred thousand dollars
from the major medical insurance fund and transfer such sum to the general fund.
(1.8) Notwithstanding any provision of this section to the contrary, on June 30,
2011, the state treasurer shall deduct ten million dollars from the major medical insurance
fund and transfer such sum to the general fund.
(2) The director shall administer the major medical insurance fund and is hereby
given jurisdiction to enforce the provisions of this article. The director shall administer
and conduct all matters involving the major medical insurance fund in the name of the
division, and, in that name and without any other name, title, or authority, the director
may:
(a) (I) Sue and be sued in all the courts of this state, of any other state, or of the
United States and in actions arising out of any act, deed, matter, or thing made, omitted,
entered into, done, or suffered in connection with the major medical insurance fund and
the administration or conduct of matters relating thereto, including the authority to
employ counsel to represent the fund in any action.
(II) Nothing in this paragraph (a) shall be construed to waive any provisions of the
"Colorado Governmental Immunity Act", article 10 of title 24, C.R.S., nor shall it be
construed to waive immunity of the state of Colorado from suit in federal court,
guaranteed by the eleventh amendment to the constitution of the United States.
(b) Make and enter into contracts or obligations relating to the major medical
insurance fund as authorized or permitted under the provisions of articles 40 to 47 of this
title, but neither the director nor any officer or employee of the division shall be
personally liable in any private capacity for or on account of any act done or omitted or
contract or other obligation entered into or undertaken in an official capacity in good faith
and without intent to defraud in connection with the administration or conduct of the
major medical insurance fund, its business, or other affairs relating thereto;
(c) Contract with physicians, surgeons, and hospitals for medical and surgical
treatment, services and supplies, crutches and apparatus, and the care and nursing of
injured persons entitled to benefits from said fund and, in addition, may contract for
medical, surgical, hospital, and nursing services and supplies in excess of the amount and
period otherwise limited in this article if said director determines that the contracting of
such extra medical, surgical, hospital, and nursing services and supplies will reduce the
period of disability for which said fund would be liable for the payment and
compensation.
(3) to (5) Repealed.
8-46-203. Failure to make returns. (Repealed)
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8-46-204. Use of funds limited. (Repealed)
8-46-205. Collection of taxes due. If any such insurance carrier or self-insurer
withdraws from business in this state before the tax falls due as provided in this part 2, or
fails or neglects to pay such tax, the director shall at once proceed to collect the same; and
the director is authorized to employ such legal processes as may be necessary for that
purpose. Suit shall be brought by the director in any of the courts of this state having
jurisdiction.
8-46-206. Enforcement powers - violations. The director, in the enforcement of
this article, shall have all of the powers granted in the "Workers' Compensation Act of
Colorado", and any insurance carrier or self-insurer violating any of the provisions of this
article, or failing to pay the tax imposed in this article, is guilty of violation of said act
and subject to the penalties therein prescribed.
8-46-207. Receipt and disbursement of moneys. (Repealed)
8-46-208. Applications - awards. (1) Payments from the major medical
insurance fund shall be awarded by the director only after an application therefor has been
filed by a claimant employee, the claimant's employer, or such employer's insurance
carrier, or one on their behalf, for admission to the fund, in any case where the limits of
liability provided under section 8-42-101 have been exhausted.
(2) Following the filing of an application, the director shall approve or disapprove
the expenditure of further sums of money from the major medical insurance fund and in
so doing may rely upon medical reports contained in the case file if the director deems
them adequate, or the director may rely upon recommendations of the medical director,
appointed pursuant to section 8-1-103, or the director may appoint a medical panel of not
more than three medical experts to see and examine the applicant, each of whom shall
render a report to the director, advising whether or not such expenditure of further sums
of money will promote recovery, alleviate pain, or reduce disability, suggesting the form
and manner of such treatment or services and suggesting the reasonable cost thereof. The
director, in every case in which an award is made from this fund, shall review said case at
such time as the total medical expenditures, including those expended under section 8-42101, shall reach fifteen thousand dollars and at each ten thousand dollars increment
thereafter to determine and enter an order regarding continuation or cessation of further
payments from said fund.
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(3) The director shall award, and the state treasurer shall pay from the major
medical insurance fund, the reasonable fees and expenses of the appointed members of
the medical panel when such procedure is used by the director.
8-46-209. Credit for reduced disability - when. In any determination of
permanent disability, the employer or the employer's insurance carrier shall receive any
credit or benefit for the reduction of disability of any claimant employee under the
"Workers' Compensation Act of Colorado" directly attributable to a compensable accident
or disease when such reduction of disability is accomplished by expenditures from the
major medical insurance fund.
8-46-210. State treasurer to invest funds. (1) The state treasurer shall invest any
portion of the major medical insurance fund, including its surplus and reserves, which the
director of the division of workers' compensation determines is not needed for immediate
use. All interest earned upon such invested portion shall be credited to the fund and used
for the same purposes and in the same manner as other moneys in the fund. Such moneys
may be invested in the types of investments authorized in sections 24-36-109, 24-36-112,
and 24-36-113, C.R.S.
(2) Repealed.
8-46-211. Abatement of tax - when. (Repealed)
8-46-212. Closure of fund. Effective July 1, 1981, no further cases shall be
accepted into the major medical insurance fund for injuries or occupational diseases
occurring after that date, nor shall any cases be transferred from the medical disaster
insurance fund to the major medical insurance fund.
PART 3
COLORADO MEDICAL DISASTER
INSURANCE FUND
8-46-301. Short title. This part 3 shall be known and may be cited as the
"Colorado Medical Disaster Insurance Fund Act".
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8-46-302. Medical disaster insurance fund - tax imposed - returns. (1) There
is hereby established a medical disaster insurance fund to defray medical, surgical,
hospital, nursing, and drug expenses in excess of those provided under the "Workers'
Compensation Act of Colorado" for employees who have established their entitlement to
disability benefits under said act, whether necessary to promote recovery, alleviate pain,
or reduce disability.
(2) The director shall administer the medical disaster insurance fund and is hereby
given jurisdiction to enforce the provisions of this part 3. The director shall approve or
disapprove admissions to the Colorado medical disaster insurance fund.
8-46-303. Use of funds limited. (1) All funds received by the division under the
provisions of this article shall be used solely to pay the costs related to the administration
of the medical disaster insurance fund and to defray the cost of medical, surgical, and
hospital expenses necessary to effect the recovery, alleviate pain, or reduce the disability
of employees who have established their entitlement to disability benefits under the
"Workers' Compensation Act of Colorado" in accordance with and subject to the
provisions of such act.
(2) Moneys in the medical disaster insurance fund are continuously appropriated
to the division for the payment of benefits as provided in this section and legal fees.
8-46-304. Enforcement powers - violations. (1) The director, in the enforcement
of this article, shall have all of the powers granted in the "Workers' Compensation Act of
Colorado", articles 40 to 47 of this title, and any insurance carrier or self-insurer violating
any of the provisions of this article is guilty of a violation of said act and shall be subject
to the penalties therein prescribed.
(2) The director shall administer and conduct all matters involving the medical
disaster insurance fund in the name of the division, and, in that name and without any
other name, title, or authority, the director may:
(a) (I) Sue and be sued in all courts of this state, of any other state, or of the
United States and in actions arising out of any act, deed, matter, or thing made, omitted,
entered into, done, or suffered in connection with the medical disaster insurance fund and
the administration or conduct of matters relating thereto, including the authority to
employ counsel to represent the fund in any action.
(II) Nothing in this paragraph (a) shall be construed to waive any provisions of the
"Colorado Governmental Immunity Act", article 10 of title 24, C.R.S., nor shall it be
construed to waive immunity of the state of Colorado from suit in federal court,
guaranteed by the eleventh amendment to the constitution of the United States.
(b) Make and enter into contracts or obligations relating to the medical disaster
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insurance fund as authorized or permitted under the provisions of articles 40 to 47 of this
title, but neither the director nor any officer or employee of the division shall be
personally liable in any private capacity for or on account of any act done or omitted or
contract or other obligation entered into or undertaken in an official capacity in good faith
and without intent to defraud in connection with the administration or conduct of the
medical disaster insurance fund, its business, or other affairs relating thereto;
(c) Contract with physicians, surgeons, and hospitals for medical and surgical
treatment, services and supplies, crutches and apparatus, and the care and nursing of
injured persons entitled to benefits from said fund and, in addition, may contract for
medical, surgical, hospital, and nursing services and supplies in excess of the amount and
period otherwise limited in this article if said director determines that the contracting of
such extra medical, surgical, hospital, and nursing services and supplies will reduce the
period of disability for which said fund would be liable for the payment and
compensation.
8-46-305. Receipt and disbursement of moneys. All moneys collected by the
division pursuant to the provisions of this part 3 shall be transmitted to the state treasurer
who shall deposit the same to the credit of the medical disaster insurance fund, and all
disbursements therefrom shall be paid by the state treasurer in accordance with and
subject to final awards of the director, as provided in this article.
8-46-306. Applications - medical panel - awards - limitations. (1) Payments
from the medical disaster insurance fund shall be awarded by the director only after an
application therefor has been filed by a claimant employee, the claimant's employer, or
such employer's insurance carrier, or one on their behalf, and approved by the director for
admission to the fund, in any case where the limits of liability provided under section 842-101 have been exhausted.
(2) The director shall, in every case where an application for payments from the
medical disaster insurance fund is filed, immediately, after receipt of such application,
appoint a medical panel of three medical experts to see and examine the applicant, each of
whom shall render a report to the director, advising whether or not the expenditure of
further sums of money will promote recovery, alleviate pain, or reduce disability,
suggesting the form and manner of further treatment or services and suggesting the
reasonable cost thereof.
(3) The director, upon receipt of reports from each of the medical experts
appointed in accordance with subsection (2) of this section, shall either deny the
application or award payments from the medical disaster insurance fund, based upon such
reports and as nearly as possible in accordance with the majority opinion and suggestions
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of the medical panel.
(4) In making payment awards from the medical disaster insurance fund, the
director shall be limited in any one case to the sum of fifty-five thousand dollars, less any
amounts of money expended by the employer or the employer's insurance carrier for
medical, surgical, or hospital services and the costs of any prosthetic devices, or the
reasonable value of any such services or devices furnished by the employer or the
employer's insurance carrier.
(5) The director shall award, and the state treasurer shall pay from the medical
disaster insurance fund, the reasonable fees and expenses of the appointed members of
the medical panel.
8-46-307. Credit for reduced disability - when. (1) In any determination of
permanent disability, the employer or the employer's insurance carrier shall receive no
credit or benefit for the reduction of disability of any claimant employee under the
"Workers' Compensation Act of Colorado" directly attributable to a compensable accident
or disease when such reduction of disability is accomplished by expenditures from the
medical disaster insurance fund, unless it shall have been determined by a preponderance
of the evidence:
(a) That the claimant employee had refused hospital, surgical, and medical
services under the "Workers' Compensation Act of Colorado" necessary to reduce the
employee's disability voluntarily offered by the employer; or
(b) That the claimant employee had reached maximum improvement as
determined by the director prior to the filing of the application for payments from the
medical disaster insurance fund.
8-46-308. State treasurer to invest funds. (1) The state treasurer shall invest any
portion of the medical disaster insurance fund, including its surplus and reserves, which
the director determines is not needed for immediate use. All interest earned upon such
invested portion shall be credited to the fund and used for the same purposes and in the
same manner as other moneys in the fund. Such moneys may be invested in the types of
investments authorized in sections 24-36-109, 24-36-112, and 24-36-113, C.R.S.
(2) Repealed.
8-46-309. Authority to utilize other revenue. Revenues obtained from the tax
imposed pursuant to section 8-46-102 (2) (a) may be used, in the discretion of the
director, for the purpose of paying the costs incurred pursuant to this article.
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ARTICLE 47
Administration
PART 1
DIRECTOR'S POWERS AND DUTIES
8-47-101. Division of workers' compensation - creation - powers, duties, and
functions - transfer of functions - change of statutory references. (1) There is hereby
created the division of workers' compensation in the department of labor and
employment. Pursuant to section 13 of article XII of the state constitution, the executive
director of the department of labor and employment shall appoint the director of the
division of workers' compensation, and the director shall appoint such employees as are
necessary to carry out the duties and exercise the powers conferred by law upon the
division of workers' compensation and the director.
(2) The director and the division of workers' compensation shall enforce and
administer the provisions of the "Workers' Compensation Act of Colorado", articles 40 to
47 of this title, as provided in said articles and the provisions of article 14.5 of this title.
(3) (a) The division of workers' compensation shall, on and after July 1, 1991,
execute, administer, perform, and enforce the rights, powers, duties, functions, and
obligations vested in the division of labor prior to July 1, 1991, concerning the duties and
functions transferred to the division of workers' compensation. On July 1, 1991, all
employees of the division of labor whose principal duties are concerned with the duties
and functions transferred to the division of workers' compensation and whose
employment in the division of workers' compensation is deemed necessary by the
executive director of the department of labor and employment to carry out the purposes of
this article shall be transferred to the division of workers' compensation and shall become
employees thereof. Such employees shall retain all rights to the state personnel system
and retirement benefits under the laws of this state, and their services shall be deemed to
have been continuous. All transfers and any abolishment of positions in the state
personnel system shall be made and processed in accordance with state personnel system
laws and rules and regulations.
(b) Repealed.
(c) Whenever the division of labor is referred to or designated by any contract or
other document in connection with the duties and functions transferred to the division of
workers' compensation, such reference or designation shall be deemed to apply to the
division of workers' compensation. All contracts entered into by the said division of labor
prior to July 1, 1991, in connection with the duties and functions transferred to the
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division of workers' compensation are hereby validated, with the division of workers'
compensation succeeding to all the rights and obligations of such contracts. Any
appropriations of funds from prior fiscal years open to satisfy obligations incurred under
such contracts are hereby transferred and appropriated to the division of workers'
compensation for the payment of such obligations.
(d) (I) Repealed.
(II) At the discretion of the state auditor, the state auditor may conduct or cause to
be conducted a performance review of the administrative law judges in the office of
administrative courts who hear cases under articles 40 to 47 of this title. The review must
include, but is not limited to, the following topics: The time elapsed from the date of
hearing until decisions are rendered by the administrative law judges; the time elapsed
from the point at which the file is complete and the case is ready for order until the
decision is rendered by the administrative law judges; the number of decisions that are
reversed upon appeal to the industrial claim appeals panel and to the court of appeals
respectively; the workload or number of cases assigned to each administrative law judge;
and the public perception of the quality of the performance of the office of administrative
courts with respect to matters arising under the "Workers' Compensation Act of
Colorado".
(4) Repealed.
(5) On and after July 1, 1991, when any provision of articles 40 to 47 of this title
refers to the division of labor said law shall be construed as referring to the division of
workers' compensation.
(6) The revisor of statutes is authorized to change all references to the director of
the division of labor, and the division of labor in articles 14.5 and 40 to 47 of this title to
refer to the director of the division of workers' compensation and the division of workers'
compensation.
8-47-102. Director to enforce orders. If any person fails or refuses to comply
with an order of the director, or to obey any subpoena issued by the director or agents of
the division, or to furnish the statistics, data, and information required to be furnished to
the division by the provisions of articles 40 to 47 of this title, or refuses to permit an
inspection as provided in said articles, or being in attendance refuses to be sworn or
examined, or to answer a question, or to produce a book or paper when ordered to do so
by the director or any of the deputies, agents, or referees of the division, the director may
apply to the district court, upon proof by affidavit of the facts, for an order, returnable in
not less than three days nor more than five days, directing such person to show cause
before the district court which made the order why such person should not be committed
to jail. Upon the return of such order, the district court shall examine under oath such
person and give the person an opportunity to be heard. If the court determines that the
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person has refused without legal excuse in any one of the foregoing matters, it may
commit the offender to jail forthwith by warrant, there to remain until the person submits
to do the act which said person was required to do or until said person is discharged
according to law.
8-47-103. Orders of director or appeals office - validity. All orders of the
director or industrial claim appeals office shall be valid and in force and prima facie
reasonable and lawful until found otherwise in an action brought for that purpose,
pursuant to the provisions of articles 40 to 47 of this title, or until altered or revoked by
the director or industrial claim appeals office, as the case may be.
8-47-104. Orders and awards - technical objections. Substantial compliance
with the requirements of articles 40 to 47 of this title shall be sufficient to give effect to
the orders or awards of the director or industrial claim appeals office, and they shall not
be declared inoperative, illegal, or void for any omission of a technical nature in respect
thereto.
8-47-105. Deposit on unpaid compensation or benefits - trust fund surplus. (1) The director has the discretion, at any time, any provisions in articles 40 to
47 of this title to the contrary notwithstanding, to compute and require to be paid to the
division, to be held by it in trust, an amount equal to the present value of all unpaid
compensation or other benefits in any case computed at the rate of four percent per
annum. Such action may be taken after a finding by the director as to the insolvency, the
threatened insolvency, or any other condition or danger which may cause the loss of, or
which has delayed or may impede, hinder, or delay prompt payment of, compensation or
benefits by any insurance carrier or employer. The action and finding of the director shall
not be subject to review, and the director shall not be required to give any notice of
hearing or hold any hearing prior to taking such action or making such finding.
(2) All moneys so paid in shall constitute a separate trust fund in the office of the
state treasurer, and, after any such payment is so ordered, the employer or insurance
carrier shall thereupon be discharged from any further liability under such award for
which payment is made to the extent of the payment made, and the payment of the award
shall then be assumed to the extent of payment made by the special trust fund so created.
If, for any reason, a beneficiary's right to the compensation awarded and ordered paid into
said special trust fund ceases, lapses, or in any manner terminates by virtue of the terms
and provisions of articles 40 to 47 of this title so that a surplus not surviving or accruing
to any other beneficiary remains in said trust fund of the amount ordered paid into it on
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behalf of the beneficiary, the insurance carrier or employer who has made said payment
shall be entitled to a refund of the present value of said surplus, if any, computed at the
rate of four percent per annum. The state treasurer shall invest any portion of the special
trust fund, including its surplus and reserves, which the director determines is not needed
for immediate use.
8-47-106. State average weekly wage - method of computation. The state
average weekly wage shall be established by the director annually on or before July 1 of
each year. The state average weekly wage shall be determined from the average weekly
earnings referenced in section 8-73-102 (1), computed by the division in June on the basis
of the most recent available figures, and applicable to the ensuing twelve months
beginning July 1. Such state average weekly wage shall automatically form the basis for
establishing maximum benefits under the "Workers' Compensation Act of Colorado" as of
12:01 a.m., July 1, 1974, and at each succeeding time and date annually thereafter.
8-47-107. Adoption of rules. The director has the power to adopt reasonable and
proper rules relative to the administration of articles 40 to 47 of this title and proper rules
to govern proceedings and hearings of the division, and the director has the discretion to
amend the rules from time to time. No such rule shall limit the jurisdiction of an
administrative law judge in the office of administrative courts to hear and decide all
matters arising under articles 40 to 47 of this title; except that in any matter where the
director has issued an order to enforce a provision of the "Workers' Compensation Act of
Colorado", an administrative law judge in the office of administrative courts shall not
hear and decide the same matter while it is pending before the director. The rules shall be
promulgated in accordance with section 24-4-103, C.R.S.
8-47-108.
(Repealed)
Workers' compensation study - report to general assembly.
8-47-109. Report to general assembly. (Repealed)
8-47-110. Public officers to enforce orders - furnish information. It is the duty
of all officers and employees of the state, counties, and municipalities, upon the request
of the director, to enforce in their respective departments all lawful orders of the director
insofar as the same may be applicable and consistent with the general duties of such
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officers and employees. It is also their duty to make to the director such reports as the
director may require concerning matters within their knowledge pertaining to the
purposes of articles 40 to 47 of this title and to furnish the director such facts, data,
statistics, and information as, from time to time, may come to them pertaining to the
purposes of said articles and the duties of the division thereunder, and particularly all
information coming to their knowledge respecting the condition of all places of
employment subject to the provisions of said articles with regard to the health, protection,
and safety of employees and the hazard of risk of such places of employment.
8-47-111. Division efforts to ensure employer compliance with workers'
compensation coverage requirements - legislative declaration. (1) The general
assembly finds, determines, and declares that it is in the best interests of the public to
assure that all employers who fall under the provisions of articles 40 to 47 of this title
have in effect current policies of insurance or self-insurance for workers' compensation
liability.
(2) In order to implement the declaration in subsection (1) of this section, the
division shall develop a procedure for verifying whether or not all employers doing
business in the state of Colorado comply with the requirements of article 44 of this title.
This procedure must include cross-referencing employer records of the division of
unemployment insurance and the division of workers' compensation. Upon identifying
employers that are not in compliance with article 44 of this title, the division, with the
assistance and cooperation of the attorney general, shall use all available means under
articles 40 to 47 of this title to ensure compliance. Every insurance carrier authorized to
transact business in this state, including Pinnacol Assurance, which insures employers
against liability for compensation under the provisions of articles 40 to 47 of this title,
shall furnish the division, upon request, all information required by it to accomplish the
purposes of this section.
8-47-112. Division web site - procedures to file complaints. The director shall
clearly post on the division's web site the procedure for an injured worker to follow to file
a complaint with the division regarding any issue over which the director or his or her
designee has authority to pursue, settle, or enforce pursuant to articles 40 to 47 of this
title.
PART 2
GENERAL POWERS
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8-47-201. Information to division - blanks - verification. Every employer
receiving from the division any blanks with directions to fill out the same or requests for
information required for the purposes of articles 40 to 47 of this title shall properly fill out
the blanks and furnish the information so requested fully and correctly. The director may
require that any information requested by the division be verified under oath and may fix
the time within which said information shall be returned.
8-47-202. Information furnished to division - confidential use. Every employer
shall furnish the division, upon request, all information required by it to accomplish the
purposes of articles 40 to 47 of this title. The information shall be for the confidential use
of the division, unless otherwise ordered by the director, and shall not be open to the
public nor used in any court or any action or proceeding pending therein, unless the
director is a party to such action or proceeding.
8-47-203. Access to files, records, and orders. (1) Notwithstanding the
provisions of section 8-47-202, the filing of a claim for compensation is deemed to be a
limited waiver of the doctor-patient privilege to persons who are necessary to resolve the
claim. Access to claim files maintained by the division will be permitted only as follows:
(a) Workers' compensation claim files shall be available for inspection upon
request by the parties to the claim, including the claimant, the employer, and the insurer
or their attorneys or other designated representatives. The parties to a claim may review
other claim files relating to the said claimant.
(b) Persons who are not parties to a claim, or their attorneys or designated
representatives, and who wish to inspect or obtain information from claim files may
submit a request to inspect a particular file, stating the purpose for such inspection. The
director may disallow such requests if the purpose of the inspection is to further
commercial interests or to disseminate information to nonparties. Any such request shall
be considered and determined by the division within seventy-two hours.
(c) (I) The director may permit access to other governmental entities only as
required for the performance of their official duties and only if those official duties relate
to enforcement of provisions of articles 40 to 47 of this title; except that the department of
revenue may access results of any inquiry made by the division to determine whether an
employer has any liability pursuant to articles 22 to 29 of title 39, C.R.S. As used in this
subparagraph (I), "enforcement" includes duties of governmental entities involved in the
administration of the provisions of articles 40 to 47 of this title or if such duties relate to
the enforcement of child support under section 26-13-122, C.R.S. This provision is not
intended to restrict the rights of persons otherwise provided for in articles 40 to 47 of this
title to inspect and copy files.
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(II) The general assembly intends that any contract, agreement, or any other means
to transfer information between the department of labor and employment and any other
governmental entity related to access to claim files in effect prior to May 27, 1997, shall
be conformed to the provisions of this paragraph (c), as amended, or terminated as
authorized by law.
(d) Persons entitled to review claim files may obtain copies upon payment of the
fee set by the division. Such persons shall not disseminate information contained in those
files except as required to resolve the claim, or as permitted by the director, or as
permitted by law.
(e) Claimants may waive the protection of this statute by executing a waiver for
the release of information. The waiver must be dated and will be effective for ninety days
thereafter.
(2) All orders entered by the director or an administrative law judge pursuant to
articles 40 to 47 of this title shall be made available by the division for inspection or
copying for a fee reflecting actual costs; except that the name and other identifying
information concerning the claimant and employer shall be excised.
8-47-203.3. Release of location information concerning individuals with
outstanding felony arrest warrants. (1) Notwithstanding any provision of state law to
the contrary and to the extent allowable under federal law, at the request of the Colorado
bureau of investigation, the division shall provide the bureau with information concerning
the location of any person whose name appears in the division's records who is the subject
of an outstanding felony arrest warrant. Upon receipt of such information, it shall be the
responsibility of the bureau to provide appropriate law enforcement agencies with
location information obtained from the division. Location information provided pursuant
to this section shall be used solely for law enforcement purposes. The division and the
bureau shall determine and employ the most cost-effective method for obtaining and
providing location information pursuant to this section. Neither the division nor its
employees or agents shall be liable in civil action for providing information in accordance
with the provisions of this subsection (1).
(2) As used in subsection (1) of this section, "law enforcement agency" means any
agency of the state or its political subdivisions that is responsible for enforcing the laws
of this state. "Law enforcement agency" includes but is not limited to any police
department, sheriff's department, district attorney's office, the office of the state attorney
general, and the Colorado bureau of investigation.
8-47-204. Employees of division - qualifications. The executive director has the
power to employ, pursuant to section 13 of article XII of the state constitution, such
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deputies, experts, statisticians, accountants, inspectors, clerks, and other employees as
may be necessary to carry out the provisions of articles 40 to 47 of this title or to perform
the duties and exercise the powers conferred by law upon the division.
8-47-205. Salaries of employees of division. All deputies, statisticians,
accountants, clerks, experts, and other employees of the division shall receive such
compensation as may be fixed by law. The salaries so fixed shall be paid monthly from
the fund appropriated for the use of the division after approval by the director.
8-47-206. Employees of division - bonds. Such employees of the division as shall
be directed by the director shall furnish surety company bonds in such sum as may be
fixed by the director, the premiums therefor to be paid as other expenses of the division
are paid.
8-47-207. Collection of statistics. The director or any agents of the division may
enter into any place of employment for the purpose of collecting facts and statistics,
examining the provisions made for the health, protection, and safety of the employees,
and bringing to the attention of every employer any rule, order, or requirement of the
division, or any law, or any failure on the part of any employer to comply therewith.
8-47-208. Records of employers open to inspection of division. All books,
records, and payrolls of employers or of any contractor, subcontractor, lessee, sublessee,
or person showing or reflecting in any way upon the amount of wage expenditure of such
employers, contractor, subcontractor, lessee, sublessee, or person and all other facts, data,
and statistics appertaining to the purposes of this article shall always be open for
inspection by the director or any agents of the division for the purpose of ascertaining the
correctness of the reported wage expenditure, number of persons employed, and such
other information as may be necessary for the uses and purposes of the division in the
administration of the "Workers' Compensation Act of Colorado".
8-47-209. Expenses of division. All expenses incurred by the division pursuant to
the provisions of the "Workers' Compensation Act of Colorado" shall be paid from funds
appropriated for the use of the division upon claims therefor which shall be itemized and
sworn to by the person who incurred the same. The claims shall be allowed by the
director subject to the approval of the controller. The traveling expenses of the director or
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of any employees of the division, incurred while on business of the division outside of the
state of Colorado, shall be paid in the manner aforesaid, but only when such expenses are
authorized in advance by the controller to be incurred by the division.
ARTICLE 48
Contractors and Lessees
8-48-101 to 8-48-103. (Repealed)
ARTICLE 49
Medical, Surgical, and Hospital
8-49-101 and 8-49-102. (Repealed)
ARTICLE 50
Dependency
8-50-101 to 8-50-117. (Repealed)
ARTICLE 51
Benefits
8-51-101 to 8-51-113. (Repealed)
ARTICLE 52
General Provisions
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8-52-101 to 8-52-115. (Repealed)
ARTICLE 53
Hearing and Review Procedure
8-53-101 to 8-53-130. (Repealed)
ARTICLE 54
State Compensation Insurance Authority
8-54-101 to 8-54-127. (Repealed)
Workers' Compensation - Continued
ARTICLE 55
Workers' Compensation Classification
Appeals Board
8-55-101.
Workers' compensation classification appeals board creation. (1) There is hereby created, in the division of insurance in the department of
regulatory agencies, the workers' compensation classification appeals board. The board
shall hear grievances brought by employers against insurers and Pinnacol Assurance
concerning the calculation of experience modification factors and classification
assignment decisions. The board shall consist of five voting members, each of whom
shall be knowledgeable about workers' compensation classification and experience
modification factors, and one nonvoting member, as follows:
(a) Two members shall be either salaried employees of an insurance company that
issues workers' compensation insurance policies in this state or representatives of
Pinnacol Assurance. Such two members shall not both represent Pinnacol Assurance or
the same insurance company. In addition, one person shall be selected to serve as an
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alternate member to represent the interests of the insurance industry or Pinnacol
Assurance. The alternate shall represent such interests in the event the primary member
recuses himself or herself.
(b) One member, who shall be a nonvoting member, shall be an employee of a
workers' compensation rating organization functioning under the provisions of section 104-408, C.R.S. The workers' compensation rating organization shall serve as a technical
resource for the board.
(c) Three members shall represent private employers. Each private employer
member shall be knowledgeable with respect to workers' compensation insurance, rules,
and classifications, and shall be familiar with the business environment and community in
this state. No private employer member shall be an employee of an insurance company,
insurance broker, insurance agent, law firm, actuary, Pinnacol Assurance, or any
association of such entities or persons. All private employer board memberships shall be
held in the name of an individual. At least one private employer member shall represent
the construction industry.
(2) The private employer members and the members representing insurers and
Pinnacol Assurance shall be appointed by the commissioner of insurance. The workers'
compensation rating organization representative shall be appointed by the chief executive
officer of such organization or by another officer designated to make such appointment.
The commissioner may solicit a list of nominees from any interested party before making
such appointments. The commissioner shall immediately notify the workers'
compensation rating organization concerning the identity of any appointees.
(3) Each member shall serve one three-year term, and, in addition:
(a) (Deleted by amendment, L. 2002, p. 1889, § 46, effective July 1, 2002.)
(b) A private employer member or member representing the insurance industry or
Pinnacol Assurance may serve a second consecutive three-year term; and
(c) The member representing the workers' compensation rating organization may
be reappointed without limitation.
(4) Any vacancy on the board shall be filled for the unexpired term in the same
manner as the original appointment. The member appointed to fill such vacancy shall be
from the same category described in subsection (1) of this section as the member vacating
the position.
(5) Members of the board shall serve without compensation, but their reasonable
expenses incurred when performing their duties as board members shall be reimbursed
from the workers' compensation cash fund created in section 8-44-112 (7). Such expenses
shall be limited to travel, food, and lodging expenses.
(6) Members of the board, in their capacity as members, shall be immune from
liability in all claims for injury that lie in tort or could lie in tort, regardless of whether
that may be the type of action or the form of relief chosen by the claimant.
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8-55-102. Right to appeal - notice of appeal procedures. An employer may
appeal to the workers' compensation classification appeals board any issue concerning the
calculation of experience modification factors and classification assignment decisions
under the workers' compensation laws of this state by filing written notice with said board
within thirty days after the employer has exhausted all appeal review procedures provided
by the insurance company. Every insurance carrier authorized to transact business in this
state, including Pinnacol Assurance, shall provide employers with a written copy or
summary of their appeal procedures, together with a written notice of the availability of
an appeal under this article, at the beginning of each policy year and when notice is
provided to the employer of a change in experience modification factors or job
classification.
8-55-103. Hearings - conflicts of interest. (1) The board shall commence each
term on January 1 of each year and shall terminate each term on December 31.
(2) At the beginning of each term the board shall either in person or by
teleconference:
(a) Elect a chair who shall be responsible for conducting each hearing;
(b)
Appoint the member representing the workers' compensation rating
organization as secretary; and
(c) Establish such organizational and procedural rules as are deemed necessary.
(3) The board shall meet as needed and in accordance with the following:
(a) The board shall schedule a hearing within thirty days after receipt of an appeal.
(b) The board shall provide written notice of a hearing to the appellant, the
insurer, and the workers' compensation rating organization within thirty days after receipt
of an appeal, but not less than ten days before the hearing.
(c) A hearing shall be conducted only if a quorum of the board is present, either in
person or by teleconference. A quorum shall consist of a simple majority of the voting
members, including at least two private sector members.
(d) Any decision of the board shall be by majority vote of the voting members
who are present at the hearing.
(e) A member's vote shall be cast only by such member.
(f) If a board member has a conflict of interest with respect to any matter
scheduled for hearing before the board, such member shall recuse himself or herself from
any discussion and decisions on said matter unless, after full disclosure of the facts giving
rise to such conflict, all parties to the appeal agree to waive such conflict. For purposes of
this paragraph (f), a member shall be deemed to have a conflict of interest if such
member:
(I) Has a conflict that would call into question such member's ability to render an
unbiased decision; and
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(II) Is associated with either party to the appeal. A member is "associated" with a
party to an appeal if:
(A) The member and the party to the appeal are involved in a common business
enterprise or are members of a controlled group, as defined in section 1563(a) of the
federal "Internal Revenue Code of 1986", as amended; or
(B) The member has a familial relationship with the party to the appeal.
(g) Notwithstanding the provisions of paragraph (f) of this subsection (3), the
member representing the workers' compensation rating organization shall not be deemed
to have a conflict of interest with respect to any appeal based solely on his or her
affiliation with his or her organization.
(4) The secretary of the board shall carry out the administrative functions of the
board and shall be responsible for providing notice of, preparing the agenda for, and
arranging the facilities for each hearing and meeting. The secretary shall also prepare a
memorandum after each hearing that includes the vote of the board. Such memoranda
shall be signed by the chair of the board and, each month, the secretary shall deliver
copies of that month's memoranda to the workers' compensation rating organization.
8-55-104. Review of board decisions. (1) A decision of the board shall be final
and not subject to appeal unless the employer, insurance company, or Pinnacol Assurance
provides written notice to the office of the commissioner of insurance, who shall
determine whether a job misclassification occurred, as required pursuant to section 8-44108. An employer may hold disputed premium amounts in abeyance from the date an
appeal is filed pursuant to section 8-55-102 until the later of:
(a) The date a final decision is made by the board concerning such appeal; or
(b) The date of any written decision of the commissioner of insurance issued
pursuant to subsection (3) of this section.
(2) Each employer, insurance company, or Pinnacol Assurance, as the case may
be, shall be advised of the right to appeal to the office of the commissioner of insurance.
(3) An employer, insurance company, or Pinnacol Assurance shall provide written
notice of an appeal to the commissioner of insurance within thirty days after the date of
the board's decision. The commissioner shall review any decision of the board properly
appealed pursuant to this section and shall provide a written decision within thirty days
after the request for such review.
(4) Any employer that holds disputed premium amounts in abeyance pursuant to
subsection (1) of this section and loses its appeal shall pay the disputed premium amount
plus interest at the rate of one percent of such disputed amount per month. Such interest
shall accrue from the date of the premium rate increase to the date of payment.
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8-55-105. Repeal of article. (1) This article is repealed, effective July 1, 2021.
(2) Prior to said repeal, the workers' compensation classification appeals board
shall be reviewed as provided in section 24-34-104, C.R.S.
Occupational Diseases
ARTICLE 60
Occupational Diseases
8-60-101 to 8-60-131. (Repealed)
Medical Insurance Provisions
ARTICLE 65
Colorado Medical Disaster Insurance Fund
8-65-101 to 8-65-108. (Repealed)
ARTICLE 66
Colorado Major Medical Insurance Fund Act
8-66-101 to 8-66-112. (Repealed)
LABOR III - EMPLOYMENT SECURITY
ARTICLE 70
Definitions - General Provisions
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8-70-101. Short title. Articles 70 to 82 of this title shall be known and may be
cited as the "Colorado Employment Security Act".
8-70-102. Legislative declaration. As a guide to the interpretation and
application of this article, the public policy of this state is declared to be as follows:
Economic insecurity due to unemployment is a serious menace to the health, morals, and
welfare of the people of this state. Involuntary unemployment is therefore a subject of
general interest and concern which requires appropriate action by the general assembly to
prevent its spread and to lighten its burden which now so often falls with crushing force
upon the unemployed worker and his family. The achievement of social security requires
protection against this greatest hazard of our economic life. This can be provided by
encouraging employers to provide more stable employment and by the systematic
accumulation of funds during periods of employment to provide benefits for periods of
unemployment, thus maintaining purchasing power and limiting the serious social
consequences of poor relief assistance. The general assembly, therefore, declares that in
its considered judgment the public good and the general welfare of the citizens of this
state require the enactment of this measure, under the police powers of the state, for the
compulsory setting aside of unemployment reserves to be used for the benefit of persons
unemployed through no fault of their own.
8-70-103. Definitions. As used in articles 70 to 82 of this title, unless the context
otherwise requires:
(1) "Agricultural labor" has the meaning set forth in section 8-70-109.
(1.5) "Alternative base period" means the last four completed calendar quarters
immediately preceding the benefit year.
(2) "Base period" means the first four of the last five completed calendar quarters
immediately preceding the first day of the individual's benefit year.
(3) "Benefits" means the money payments payable to an individual with respect to
his unemployment. The different classifications of benefits are set forth in section 8-70110.
(4) "Benefit year" has the meaning set forth in section 8-70-111.
(5) "Calendar day" means a full day beginning and ending at 12 midnight. As used
in connection with appeal or protest periods, calendar days begin to be counted on the day
after the date appearing on a notice issued by the division and continue consecutively for
the number of days in the appeal or protest period. If the last day of any period set forth in
articles 70 to 82 of this title is a Saturday, Sunday, or legal holiday, the period is extended
to include the next day that is not a Saturday, Sunday, or legal holiday.
(6) "Calendar quarter" means the period of three consecutive calendar months
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ending on March 31, June 30, September 30, or December 31.
(6.3) "Chargeable payroll" means the sum of chargeable wages.
(6.5) "Chargeable wages" means those wages paid to an individual employee
during a calendar year on which the employer of that employee is required to pay
premiums as provided by article 76 of this title, including all wages subject to a tax under
federal law, which imposes a tax against which credit may be taken for premiums
required to be paid into a state unemployment fund. For each calendar year, chargeable
wages is the first ten thousand dollars paid to an individual; except that, effective January
1, 2012, chargeable wages for each calendar year is the first eleven thousand dollars paid
to an individual and except that, after December 31 of the calendar year in which the
revisor of statutes receives the written report pursuant to section 8-76-102.5 (1) indicating
that the fund balance of the unemployment compensation fund on any June 30 is equal to
or greater than zero dollars and all advances in accordance with the conditions specified
in Title XII of the federal "Social Security Act", as amended, have been repaid,
chargeable wages is the first eleven thousand dollars paid to an individual, adjusted by the
change in the average weekly earnings prescribed in section 8-73-102, rounded to the
nearest one hundred dollars. As used in articles 70 to 82 of this title, chargeable wages
paid includes chargeable wages constructively paid as well as chargeable wages actually
paid.
(7) "Claims" includes any of the divisions of the classifications set forth in section
8-70-112.
(8) "Division" means the division of unemployment insurance.
(8.5) "Electronic" has the meaning set forth in section 24-71.3-102 (5), C.R.S.;
except that "electronic" shall not include use of the telephone to transmit audio or voice
communication.
(9) "Employer" has the meaning set forth in section 8-70-113.
(10) "Employing unit" has the meaning set forth in section 8-70-114.
(11) "Employment" has the meaning set forth in sections 8-70-115 to 8-70-125,
exclusive of the exceptions set forth in sections 8-70-126 to 8-70-140.7.
(12) "Employment office" means a free public employment office or branch
thereof operated by this state or maintained as a part of a state-controlled system of public
employment offices.
(12.5) "Fully employed" means any employee who is employed thirty-two hours
or more for any week and is not included in the definition of "partially employed" as set
forth in subsection (19) of this section.
(13) "Fund" means the unemployment compensation fund, established in section
8-77-101 (1), to which all premiums required and from which all benefits under articles
70 to 82 of this title and bonds issued under section 8-71-103 (2) (d) are paid and from
which payments may be made to the Colorado housing and finance authority under
section 29-4-710.7, C.R.S.
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(14) "Hospital" means an institution which has been licensed, certified, or
approved by the department of public health and environment as a hospital.
(15) (a) "Institution of higher education" means an educational institution which:
(I) Admits as regular students only individuals having a certificate of graduation
from a high school or the recognized equivalent of such a certificate; and
(II) Is legally authorized in this state to provide a program of education beyond
high school; and
(III) Provides an educational program for which it awards a bachelor's or higher
degree or a program which is acceptable for full credit toward such a degree, a program
of postgraduate or postdoctoral studies, or a program of training to prepare students for
gainful employment in a recognized occupation; and
(IV) Is a public or other nonprofit institution.
(b) Notwithstanding any of the provisions of paragraph (a) of this subsection (15),
all colleges and universities in this state are institutions of higher education for purposes
of this section.
(16) "Insured work" means employment for employers.
(17) (a) "Interested party" to any benefit decision means the individual who is
claiming benefits, the division, and any employer who has complied with the reporting
requirements of the division with respect to wages or other information regarding such
individual.
(b) "Interested party" to a premium liability determination means the division and
the employer whose business has been issued a liability determination by the division.
(18) "Inverse chronological order", when applied to the charging of employers'
accounts, means that the most recent base period employer is the first employer charged
and all other employers shall follow in reverse order of dates of employment.
(19) "Partially employed" refers to an individual whose wages payable to him by
his regular employer for any week of less than full-time work are less than the weekly
benefit amount he would be entitled to receive if totally unemployed and eligible or, in
any established payroll period not longer than one month, are less than full-time work in
which wages payable to him by his regular employer are less than an amount determined
in accordance with the general rule proportionately equivalent for such pay period to the
individual's weekly benefit amount. Any employee who is employed thirty-two hours or
more for any week is deemed to be employed full time for such week and is not included
in the definition of "partially employed" under this subsection (19).
(20) "Payments in lieu of premiums" means the money payments made into the
fund by an employer pursuant to the provisions of sections 8-76-108 to 8-76-110.
(21) "Payroll period" means a period of not more than thirty-one consecutive days
for which a payment of remuneration is ordinarily made to the employee by the
employing unit employing him. If the services performed during one-half or more of any
payroll period by an employee for the employing unit employing him constitute
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employment, all the services of the employee for such period shall be deemed to be
employment; but, if the services performed during more than one-half of any such payroll
period by an employee for the employing unit employing him do not constitute
employment, none of the services of the employee for such period shall be deemed to be
employment.
(22) "Period of unemployment" commences only after registration by the
individual at an employment office, except as the division, by regulation, otherwise may
prescribe.
(23) "Political subdivision" means a county, municipality, school district, local
junior college district, special district formed pursuant to title 32, C.R.S., cooperative
agency formed pursuant to part 2 of article 1 of title 29, C.R.S., or regional commission
formed pursuant to section 30-28-105, C.R.S.
(23.5)
"Premiums" means the money payments to the unemployment
compensation fund required by articles 70 to 82 of this title.
(24) "State" includes the states of the United States of America, the District of
Columbia, the commonwealth of Puerto Rico, and the Virgin Islands.
(25) to (27) (Deleted by amendment, L. 2009, (HB 09-1363), ch. 363, p. 1877, §
2, effective July 1, 2009.)
(28) "Totally unemployed" means an individual who performs no services in any
week with respect to which no wages are payable to him. Should such week occur within
an established payroll period in which the individual is not totally separated from his
regular employer, he shall be deemed not totally unemployed but partially employed, as
defined in subsection (19) of this section, and subject to the conditions pertaining to
partial employment.
(29) "Wages" has the meaning set forth in section 8-70-141.
(30) "Week" means such period of seven consecutive days as the director of the
division may prescribe by regulations.
(31) "Weekly benefit amount" means the amount of benefits an individual is
entitled to receive for one week of total unemployment.
8-70-104. Additional definitions. (Repealed)
8-70-105. Banks as instrumentalities of United States. (1) For all purposes of
articles 70 to 82 of this title and in conformity with federal laws, national banks doing
business in Colorado and state bank members of the federal reserve system shall be
deemed and held to be instrumentalities of the United States, as referred to in articles 70
to 82 of this title.
(2) Banks doing a commercial banking business in Colorado and maintaining an
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account with the federal reserve bank or with a member of the federal reserve system, for
the purposes of articles 70 to 82 of this title, shall not be deemed to be instrumentalities of
the United States.
8-70-106. No vested rights or immunities. The general assembly reserves the
right to extend the time of operation, amend, or repeal all or any part of articles 70 to 74
and 76 to 81 of this title at any time; and there shall be no vested private right of any kind
against such extension, amendment,