Employee Health: Colorado
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Stuart R. Buttrick, Thomas W. Carroll, Susan W. Kline and Mary L. Will, Faegre Baker Daniels LLP
- Colorado health insurance and health benefits providers offering individual health coverage plans or a small group plans may offer incentives or rewards to persons to participate in employee wellness and prevention programs. See How to Keep Employees Healthy.
- The Colorado Clean Indoor Air Act prohibits smoking in workplaces. See Smoking in the Workplace.
- Employers must report workplace fatalities "immediately." See Managing an At-Work Fatality.
How to Keep Employees Healthy
Colorado insurance laws set certain requirements for employee wellness and prevention programs. The General Assembly sees these programs as a way to increase employee health and decrease health care costs. Wellness and prevention programs are defined as those programs designed to promote health or prevent disease and may include many different health-related programs. Health insurance and health benefits providers offering individual health coverage plans or small group plans may offer incentives or rewards to encourage covered persons to participate in such programs. +C.R.S. § 10-16-136. Small group plans are those that provide coverage to small employers, which are generally defined as having 50 or fewer employees and include a business group of one. +C.R.S. 10-16-102(40) & +C.R.S. 10-16-102(42). Wellness incentives may be based on participation in the programs or on satisfaction of certain outcomes, as long as they comply with the federal Health Insurance Portability and Accountability Act (HIPAA). +C.R.S. § 10-16-136(2)(b). See Employee Benefits > Health Information and Privacy (HIPAA); Employee Benefits > Managing Health Care Costs > Wellness and Prevention Programs.
Smoking in the Workplace
The Colorado Clean Indoor Air Act (Act) prohibits smoking, including the use of electronic smoking devices (ESD), in any indoor area, including any place of employment, regardless of whether the place of employment is open to the public and the number of employees. Also, smoking is prohibited in hotel and motel rooms and assisted living facilities, as well as certain other places. The limited exceptions where smoking is allowed include, among other places, outdoor areas of any business, private homes and vehicles (unless they are being used to care for children) and establishments intended to allow smoking, such as cigar bars. Smoking is also prohibited within 25 feet of entryways (i.e., outside the front or main doorway leading into a building and a 25-foot radius outside the doorway). +C.R.S. 25-14-203; +C.R.S. 25-14-204; +C.R.S. 25-14-205; +2019 Bill Text CO H.B. 1076.
Employers that are exempt from the law must provide a smoke-free work area for each employee requesting not to have to breathe second-hand smoke and emissions from electronic smoking devices.
Under the Act, the definition of smoking means inhaling, exhaling, burning or carrying any lighted or heated cigar, cigarette or pipe, or any other lighted or heated tobacco or plant product intended for inhalation, including marijuana, whether natural or synthetic, in any manner or form. It also includes the use of an electronic smoking device.
Electronic smoking device or ESD means:
- Any product, other than a product referenced below, that contains or delivers nicotine or any other substance intended for human consumption and that can be used by a person to enable the inhalation of vapor or aerosol from the product; or
- Any similar product or device, whether manufactured, distributed, marketed or sold as an e-cigarette, e-cigar, e-pipe, e-hookah or vape pen, or under any other product name or descriptor.
An electronic smoking device does not include:
- A humidifier or similar device that emits only water vapor; or
- An inhaler, nebulizer or vaporizer that is approved by the federal Food and Drug Administration for the delivery of medication.
A place of employment means any indoor area, or portion of it, under an employer's control in which employees perform services for, or on behalf of, the employer.
An employer means any person, partnership, association, corporation or nonprofit entity that employs one or more persons.
Colorado's lawful off-duty activities statute prohibits an employer from terminating an employee "due to the employee engaging in lawful activity off the premises of the employer during nonworking hours" unless it relates to a bona fide occupational qualification or other exceptions. +C.R.S. § 24-34-402.5. The lawful off-duty statute is sometimes referred to as a smokers' rights law, and the Colorado Supreme Court has recognized that smoking tobacco is lawful off-duty conduct. See Evans v. Romer, +882 P.2d 1335 (Colo. 1994).
Managing a Workplace Emergency
Good Samaritan Law
Under the Colorado Good Samaritan law, a person who sees an emergency situation and proceeds to give emergency care, in good faith and without compensation, will not be held liable for any injury that results from that care. This is true as long as there is no gross negligent or willful and wanton behavior. +C.R.S. 13-21-108(1).
Automated External Defibrillators (AEDs)
With the exceptions of schools, Colorado does not have a law requiring public places to have AEDs (and even schools are not required to have one unless one has been given as a charitable donation or money has been donated to the school specifically for the acquirement of an AED). However, there is a law that addresses any entity that chooses to place one within its confines.
If an employer has an AED on its premises, it must assure that any expected users receive appropriate training in both CPR and AED use from a course that has been approved by the Department of Public Health and Environment. It also must report the existence of the AED, its type and its location to the applicable emergency communications or vehicle dispatch center.
In addition, the employer must meet the following requirements:
- The AED must be maintained and tested regularly according to manufacturer guidelines;
- There is a written plan that discusses AED placement, training, pre-planned communications with emergency medical responders, individuals authorized to use the AED, reporting methods and maintenance standards. All plans must be approved by a licensed physician; and
- Any time that the AED is used to provide medical care, the person performing the care must activate the medical response system as soon as possible.
In the chance that there is an AED in the building, anyone, whose primary duty is not health care, who uses the device will be free from liability for any injuries under the same circumstances as apply under the Colorado Good Samaritan law above. +C.R.S. § 13-21-108.1.
Managing an At-Work Fatality
Employers are required to report workplace fatalities to the Colorado Division of Workers' Compensation "immediately." +C.R.S. § 8-43-101. The Division also instructs employers to inform their insurers of workplace fatalities "immediately." Neither the law nor the Division defines "immediately", but employers are advised to report the fatality as soon as possible.
Employers, or if they are insured, their insurers, have 20 days to notify the Division of whether they admit or contest liability. Failure to file such notification within 20 days may result in monetary liability for each day of delay. +C.R.S. § 8-43-203.
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