New Colorado Military Leave Law Now in Effect
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New Colorado Military Leave Law Now in Effect

Brownstein Client Alert, July 11, 2023

Update for Employers With Colorado Employees Who Are Members of the Colorado National Guard or U.S. Armed Forces Reserves

Effective earlier this year, HB23-1045 clarifies employment leave requirements for members of the Colorado National Guard and the Reserves of the U.S. Armed Forces (“Reserves”) engaged in training with the armed forces of the United States and other types of military service.

How much military leave is an employee entitled to receive under the new law? Under this bill, all employees of private employers who are members of the Colorado National Guard or the Reserves are entitled to up to three weeks of annual leave for certain military service rather than the 15-day allotment under prior law. The three-week allotment is calculated based on the employee’s regular work schedule for the applicable calendar year. The bill leaves unchanged the 15 days of annual leave available to members of the Colorado Wing of the Civil Air Patrol for authorized civil air patrol missions.

What does this mean for employers? If an employee is a member of the Colorado National Guard or the Reserves, their leave entitlement is now based on their regular work schedule. Thus, if an employee typically works six days per week, the leave entitlement would be 18 days. If the employee typically works three days per week, the leave entitlement would be nine days.

Is military leave paid or unpaid?Employees are entitled to use any paid leave available to them, or take unpaid leave; however, employers may not require the use of paid leave time.

Are there hardship exemptions or “key employee” exceptions for employers that allow denial of military leave under certain circumstances? No, there are no exceptions for particular categories of employer or employee; the law applies to employers of all sizes and employees in any roles, even key positions. Employees are entitled to up to three weeks of certain military training per calendar year, up to 15 days for civil air patrol missions per calendar year and/or any period of time for active service as a Colorado National Guard member.

What rights do employees have upon return from leave? Employees who are members of the Colorado National Guard, Reserves and/or Civil Air Patrol are entitled to reinstatement and other benefits when they take protected leave if they are still qualified to perform the job, so long as they return to their positions as soon as possible after engaging in the protected military activity and provide their employer with documentation of service. Periods of protected military leave may not result in loss of pay, seniority, status, efficiency rating, vacation, sick leave or other benefits. In other words, employers must permit employees’ leaves of absence as outlined in applicable law and may not penalize employees in any manner for that absence. These guarantees are complementary to those guaranteed by the Uniformed Services Employment and Reemployment Rights Act (USERRA). 

What should employers do now? Private employers with Colorado employees should review and update their employee handbooks and military leave policies and procedures to ensure that they are compliant with applicable law as recently updated, including providing employees with the leave to which they are legally entitled and ensuring that employee rights and benefits are maintained as required by applicable law and that employees are properly reinstated upon their return. In addition, employers would be well advised to prepare contingency plans with respect to employees serving in any branch of the military to ensure that a staffing coverage plan is in place in the event that such employees are summoned to military training or duty.

Brownstein Summer Associate Ruth Morris contributed to this alert.

This document is intended to provide you with general information regarding Colorado's military leave law. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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