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This Colorado Human Resources Manual is offered to you for free. Find state specific laws and regulations below.

Recruiting and hiring — Colorado

Although the prohibitions below seem relatively simple at face value, a significant number of discrimination charges arise from the job-interview process. As a result, every smart company should make sure that the employees who recruit or conduct interviews on its behalf have been trained (and are periodically retrained) regarding what practices are legal and proper. Under various state and federal laws, employers are prohibited from making hiring decisions on the basis of:

  • race
  • color
  • national origin or ancestry
  • creed
  • marital status or familial status
  • “lawful off-duty” activities
  • religion
  • sex 
  • sexual orientation including transgender status
  • pregnancy or family status
  • genetic information
  • age
  • disability
  • concerted activity of employees on terms of employment
  • a complaint of illegal activity or a serious safety violation
  • current assertion of a workers’ compensation claim against an employer
  • previous assertion of a workers compensation claim or right against an employer
  • availability or use of a benefit plan. 

Unlike the federal anti-discrimination statutes, the Colorado Anti-Discrimination Act (CADA) applies to all employers within the state, regardless of number of employees. Thus, even an employer with a single employee is covered by CADA. However, under CADA, the definition of employer does not include religious organizations that are not supported by public taxes or borrowing. CADA was drafted to mirror federal anti-discrimination laws in many ways. Additionally, federal case law is frequently used to interpret CADA and decide new questions.     

Job postings

It is a discriminatory or unfair employment practice to discriminate in any type of publication, including advertising for employment. Thus, it is unlawful to publish (or cause to be published) an advertisement that indicates, or could reasonably be understood as indicating, an intention by anyone to commit an act of discrimination. Advertisements also may not contain terms or phrases that would deter members of a particular class from applying by implying or expressing a preference for certain types of applicants. An “advertisement” has been interpreted to include advertising in the media, on the Internet, direct-mail advertising, in-company advertising, and career films.

Important: In Colorado, employers are encouraged to contact the Colorado Civil Rights Commission (CCRC) if they have a question about whether their advertisement appropriately refers to a protected class or characteristic and the Commission will render an informal opinion.

Written advertisements

An employer should carefully review its written job advertisement to ensure that the advertisement does not directly or indirectly contain discriminatory language. The EEOC’s Compliance Manual advises that the following types of “trigger” phrases should not be placed in advertisements:

  • “Recent college graduate desired” (ADEA violation)
  • “0 to 1 years of experience” (ADEA violation)
  • “Young, energetic” (ADEA violation)
  • “Young executive position” (ADEA violation)
  • “A few good men wanted” (Title VII violation)
  • “Hostess or waitress” (Title VII violation)
  • “Christian carpenter wanted” (Title VII violation).

Illustrated advertisements

In general terms, it is good practice for an advertisement with illustrations to exhibit a diverse array of employees representing various races, ages, sexes and various protected classes. If this is not feasible, then the advertisement should include a statement that the employer is an equal opportunity employer, which is sufficiently prominent and clear to counterbalance the message conveyed by the illustration.

Internet advertising

The Internet has been touted as breaking down communication barriers and expanding everyone’s ability to seek new opportunities. While this is true on many levels and advances in technology make internet access increasingly easy, it is important to keep in mind that:

  • Access to the Internet remains unbalanced between social and economic classes.
  • The use of many computer systems and the ability to retrieve and comprehend all the information available on a website may be limited for those who have certain disabilities.

As a result, an organization, which relies exclusively, or predominately, on Internet advertising and recruiting to create a pool of applicants from which hiring decisions are made, may face allegations of discrimination and claims of disparate impact.

For certain industries, as well as certain positions, the use of Internet recruiting is particularly appropriate. For instance, it is reasonable that a software company or e-commerce company will utilize the Internet as a way to reach potential employees. Similarly, an organization that seeks to hire a systems manager or website developer would likely have the ability to list use of the Internet as an essential function of the job, thereby making Internet recruiting a reasonable tool for locating qualified applicants.

For other employers, who seek to fill non-Internet-related positions, certain cautionary steps should be taken. For instance, the following actions may be good choices for recruitment methods:

  • Running advertising simultaneously on the Internet and other media. This may include newspaper advertising, job hotlines, postings at schools or community organizations, or even radio advertising.
  • Permitting applicants to respond to the advertisement by means other than the Internet. It is important to remember the challenges faced earlier by employers who would only accept resumes via facsimile. An applicant may learn of a position that is listed on the Internet, but not be able to use the Internet to respond.
  • Making screening and hiring determinations based upon the qualifications of the applicant and not on whether the applicant used a particular means of communication to apply.

Job descriptions

Once the need for a new employee is established, one of the most important aspects of screening and selecting a new employee is to develop a job description that clearly and accurately defines the essential requirements and functions of the position. Under the Colorado Equal Pay Act goes into effect, the posted job description must include a salary range as well. In addition to the obvious function of identifying the employer’s hiring needs, the job description also serves an important legal purpose by providing an objective standard by which a prospective employee’s qualification can be measured. A prospective employee, who does not meet the standard, typically does not have a basis for a claim of unlawful discrimination. The job description also becomes an important document in the event of a dispute between the employer and employee regarding his/her ability to perform the essential functions of the position and, therefore, should be maintained in the permanent employment record.

Applications

The employment application is a good starting point from which an employer may identify candidates who likely possess the qualifications to perform the requirements and functions for the position stated in the job description. Whether the employer uses a written application or other means of collecting information, an employer must seek only the information needed to assess if the applicant has the skills and experience to perform the requirements of the job description; if a college degree is not needed, do not advertise the position as requiring a college degree. If an employer chooses to use an employment application, the application also should:

  • Ask the applicant whether he or she is legally eligible for employment in the United States (not ask if the applicant is a U.S. citizen).
  • Indicate that it is not an offer of employment or contract, and that, if hired, the employment will be “at-will.” 
  • Include a statement that the employer is an equal opportunity employer.

In general, an application must be retained by the employer for at least one year after the application is created or after the personnel action involved is taken, whichever is later.

If an applicant requests reasonable accommodation so that he or she can apply for a job, employers are required to provide a reasonable accommodation under the Americans with Disabilities Act.  For instance, if the employer uses a computer-based application form and a person with a disability tells the employer he or she wants to apply for a job but cannot use a computer terminal, then the employer must provide another way for the candidate to apply.

Job interviews

Job interviews are conducted to eliminate unqualified employment candidates and to evaluate qualified candidates. Interviews may also, however, intentionally or unintentionally, have the effect of denying employment opportunities to members of protected classes or with protected characteristics.

As a general rule, the information obtained and requested through the pre-employment process should be limited to those essential for determining if a person is qualified for the job; whereas information regarding protected classes such as race, sex, national origin, age, and religion are irrelevant in such determinations. Employers are explicitly prohibited from making pre-employment inquiries regarding disability issues.

Although state and federal equal opportunity laws do not clearly forbid employers from making pre-employment inquiries that relate to, or disproportionately screen out members based on race, color, sex, national origin, religion, or age, such inquiries may be used as evidence of an employer's intent to discriminate, unless the questions asked can be justified by some business purpose.

Therefore, inquiries about organizations, clubs, societies, and lodges of which an applicant may be a member or any other questions that might indicate the applicant's race, sex, national origin, disability status, age, religion, color, or ancestry if answered, should generally be avoided. In questioning job applicants, managers should ask themselves:

  • Will the answer to the question, if used in making a selection, have the effect of screening out members of a protected class (for instance, those more than 40 years old, or of a certain race or gender or with a disability)?
  • Is this information really necessary to judge an applicant’s competence or qualifications for the job in question?

Interview dos

  • DO ask questions that are job-related. Logically, an employer would only ask these questions on which he or she intended to base a hiring decision.
  • DO ask the applicant about prior employment to develop a general work attitude.
  • DO ask reasons for leaving prior positions and about gaps in employment history.
  • DO ask whether the applicant has any educational background that is pertinent to the position.   
  • DO ask whether the applicant has any training or experience in the military that is related or useful to the position.
  • DO ask whether the applicant is at least 18 years of age.
  • DO inform applicants that he or she must, if hired, establish identity and authorization to work in the United States in order to comply with the Immigration Reform and Control Act (IRCA).
  • DO inform an applicant that the company is an equal opportunity employer. Ensure that the applicant is aware of the company’s policy that it does not consider factors such as age, race, national origin, religion, disability, sexual orientation, or sex in making any employment decisions.
  • DO require the applicant to fill out the application completely, sign and date the application, and require the applicant to specify the position(s) applied for and availability.
  • DO evaluate the capability of an applicant by using specific, written job criteria, and refer to these criteria when specifying the reason for rejecting an applicant.
  • DO document objective reasons for not hiring an applicant. The interviewer should not make any notation or comment on the application that indicates, for instance, the age, sex, race, color, or physical disability of the applicant.
  • DO reduce the number of persons involved in the decision-making process and, where possible, limit such decisions to the person who conducts the preliminary interview and the ultimate decision maker.
  • DO train all individuals that may conduct an interview to follow these requirements.

Interview don'ts

  • DO NOT ask questions regarding race or color. For instance, do not ask:
    • “How do you feel about working with members of a different race?”
    • “Your supervisor is white (or black, etc.), does that create any difficulties for you?”
  • DO NOT ask females different questions than those that are asked of males. For instance, do not ask females:
    • “Who watches your children while you’re at work?”
    • “Do you get along with other women?”
    • “Do you plan to have children (get married, etc.)?”
    • “Will it bother you if men swear?”
    • “Are you supplementing the household income?”
    • TO NOTE: it is inappropriate to ask men the above questions as well.
  • DO NOT ask whether the applicant has been arrested (but to avoid negligent hiring issues, investigating convictions may be necessary).
  • DO NOT ask if the applicant has ever been discharged from the military.
  • DO NOT ask about the applicant’s credit references, credit history, or home ownership without carefully studying and following the Fair Credit Reporting Act (FCRA).
  • DO NOT ask questions regarding religious beliefs, affiliations, or holidays, or about the applicant’s church or pastor. For instance, do not ask whether an applicant is active in any church or whether an applicant will miss work to attend services on religious holidays.
  • DO NOT ask an applicant’s age, either directly or indirectly. For instance, date of birth is a direct inquiry and date of graduation from high school is an indirect inquiry.
  • DO NOT ask questions about national origin, either directly or indirectly. For instance, do not ask:
    • Were you born in this country?”
    • “That’s an unusual name.  What nationality is that?”
  • DO NOT ask for a “maiden name.” This constitutes a question as to the marital status of applicants. It is acceptable to ask about previous names (without inquiry into reasons for the change, such as previous married name) if previous employers or references would know the applicant by another name.
  • DO NOT ask about marital status, regardless of gender.
  • DO NOT ask about pregnancy and family plans, name of spouse, spouse’s occupation or place of employment, or names and ages of children.
  • DO NOT require the applicant to submit a photograph with the application.
  • DO NOT ask about political affiliations, or union memberships or sympathies.
  • DO NOT ask if the applicant can read, write, or speak a foreign language, unless necessary to perform the job.

The Colorado Civil Rights Division provides the following as a guide for inquiries that are lawful and unlawful in an interview and is available online at:

Pre-employment Inquiries It is NOT discriminatory to ask It MAY be discriminatory to ask
 
 
Address
 
For applicant's current and previous address and length of residence.
For foreign addresses that would indicate national origin.
 
Whether the applicant rents or owns a home.
The relationship of persons with whom the applicant lives.
 
 
 
Age
Whether the applicant can submit proof of age.
 
Note: May state that selection is subject to proof of age if age is a legal requirement. If the applicant is a minor, proof of age in the form of a work permit, certificate of age, or birth certificate can be required.
 
 
For birth certificate or other identification as proof of age prior to selection unless age is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business or enterprise.
 
 
Ancestry or national origin
 
 
None: Any questions in this area may lead to a discriminatory inference.
About ancestry or national origin of an applicant's parents, spouse, associates, or any memberships in associations that may indicate ancestry or national origin.
 
What language the applicant commonly uses or how an applicant acquired a proficiency in a foreign language.
Arrests
None: Any questions in this area may lead to a discriminatory inference.
About arrests or convictions.
Birthplace
None: Any questions in this are may lead to a discriminatory inference.
About birthplace.
 
 
 
Citizenship
Whether an applicant is legally entitled to work in the United States.
 
Note: Applicants may be informed that they will be required to complete an I-9 form verifying either their citizenship or their legal right to work in the U.S.
About an applicant's citizenship.
 
Whether an applicant's parents are naturalized or native born citizens.
 
For U.S. citizenship for a particular job unless if it is required by federal, state or local law; or government contract.
 
Convictions/Court records
About actual convictions, which are substantially related to an applicant's ability to perform a specific job if this question is addressed to every applicant.
 
About a conviction or court record that is not substantially related to applicant's ability to perform job duties.
 
 
Credit rating
 
None: Any questions in this area may lead to a discriminatory inference.
About applicant's economic status or other source of income.
 
Whether the applicant owns or rents a home.
About the mode or method of transportation if not related to job requirement.
 
Dependents
None: Any questions in this area may lead to a discriminatory inference.
About children (i.e., the number of names, ages and the like), or about what arrangements have been made for childcare.
 
 
 
Disabilities
Whether the applicant can perform the essential job functions of this position.
For a demonstration or verbal description of how he or she would perform essential job functions if required of all applicants.
Whether the applicant has any disabilities.
About any history of serious illness.
 
About disabilities or physical conditions, which do not relate to an applicant's fitness to perfom job.
Whether the applicant has received workers' compensation before offering the applicant the job.
 
 
Education
For schools attended or academic, vocational or professional education.
 
Language of office or other skills if substantially related to an applicant's ability to perform the job duties.
 
The nationality or religious affiliations of schools attended.
 
How language skills were acquired.
Emergency contact
None: For name of person to contact in emergency.
For the name of an individual to be contacted in an emergency.
 
Experience
None: For applicant's work experience.
About other countries visited.
 
About previous work experiences.
 
 
 
Language skills
For a level of language proficiency required to perform the duties of the job.
For a level of language proficiency or the use of a particular language at all times, if not a business necessity.
 
About the "mother tongue" or language commonly used by applicant.
 
How applicant acquired proficiency in a foreign language.
 
 
Military record
About military experience and education in the armed forces of the United States that relates to specific job duties.
Type or date of dischage.
 
Applicant's general military service, which is not substantially related to ability to perform specific job duties.
 
 
 
 
 
Marital status
Whether MRS., MISS, MS., when made in good faith and not for the purpose of discrimination.
Whether the applicant can meet specific work schedules or any other commitments that might hinder attendance.
About anticipated duration of employment or anticipated absences, if asked of both males and females.
Whether the applicant is single, married, divorced, separated or widowed.
 
About pregnancy, birth control, children or future child bearing plans.
 
For spouse's name, age, place of employment or income.
 
Whether the applicant is married to or engaged to marry a current employee of the employer (for employers of 26 or more employees).
Misc.
 
Any non-job-related question that is not necessary for determining an applicant's eligibility for employment.
 
 
Name
About previous work experience with the organization under another name.
Whether additional information concerning change of name is necessary to check work or education records.
 
 
About former names that have been changed by court order or otherwise, if not required to check necessary records.
 
 
Organizations
About memberships and offices held in organizations that relate to an applicant's ability to perform a particular job.
For a list of all organizations, clubs, or societies to which applicant belongs.
 
About memberships in organizations that would indicate race, color, national origin, ancestry, sex, disability, creed or religion.
Photograph
For a photograph after hiring.
For a photograph prior to hiring, unless based on a BFOQ.
Physical features (such as height and weight)
About an applicant's physical characteristics, if necessary to perform substantial duties of the job.
 
About an applicant's height and weight, if unrelated to abilities necessary to perform substantial job duties.
 
 
Race
 
None: Any questions in this area may lead to a discriminatory inference.
Direct or indirect questions that would indicte an applicant's race or color.
 
About the color of skin, eyes or hair.
 
About an applicant's race, as this is never a BFOQ.
 
References
For the name of the person who referred the applicant to the position.
For names of professional and character references.
 
 
For a religious reference.
 
Relatives
For names and addresses of parents/guardians of minor children.
For names of relatives already employed with the organization if this affects company policy.
 
For the name and address of a relative of an adult applicant.
 
 
Religion
None: Any questions in this area may lead to a discriminatory inference, unless religion is a BFOQ reasonably necessary to the normal operations of the particular business or enterprise.
 
Any questions that, if answered, would reveal religious affiliation, demonstration, customs, holidays observeed or name of minister.
 
 
 
 
 
Sex
Whether MR., MRS., MS., is male or female when made in good faith and not for the purpose of discrimination, if it is a voluntary request only and stated as such.
About a job advertisement or classification on the basis of sex and concerning the sex of the applicant are permissible, only if a particular sex is a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business or enterprise.
About an applicant's sex or any questions that, if answered, would reveal applicant's sex, unless sex is a BFOQ reasonably necessary to the normal operation of the particular business or enterprise.
 
NOTE: Gender is rarely required as a lawful qualification for any job other, for instance, attendant in a single-sex bath house. Sex is not a bona fide occupational qualification (BFOQ) just because a job requires physical labor, unusual work hours, or travel, or because customers or employees prefer members of one sex over the other or hold stereotypes concerning abilities or attitudes of members of one sex. 
Sexual Orientation (Including all LGBT)
 
None: Any questions in this area may lead to a discriminatory inference.
Direct or indirect questions that would indicate an applicant's sexual orientation. Sexual orientation is never a BFOQ.
 
 
Work schedules
Whether an applicant can meet a specific work schedule.
About an applicant's protected class, such as religion, in determining work schedule availability.
 
Note: Inquiries made prior to selection should be justified by business necessity. Reasonable accommodation is required for an applicant on the business of religion, creed or disability.

 

Remote interviews

Remote hiring and interviewing have become increasingly common. Some special considerations when conducting remote interviews include:

  • Do all potential candidates have access to the technology being used to conduct the interview?
  • Is the web platform ADA-compliant?
  • What accommodations need to be offered to prospects with disabilities?
  • Is the interviewer prepared to handle technology issues during the interview?
  • Is the interviewer set up in a professional work environment free from individual distractions such as spouses, children, dogs, etc.?
  • Will interviews be recorded? If so:
    • Are all interviews being recorded or only those for select candidates? If only select candidates, ensure that no selections are made that could lead to claims of discrimination.
    • Has permission been granted from the candidates to record the interview?
    • How will the recording be retained to satisfy EEO recordkeeping requirements?

Interview notes

The interviewer is encouraged to write out all of the questions that he or she believes are necessary for a sound interview in advance. This list of questions should be used in each interview for the pertinent position. The interviewer is not confined to just these questions and may ask additional questions depending on information provided during the interview. The list, however, helps to ensure consistent questioning amongst candidates and helps the interviewer to respond to an allegation that the questions and focus were different for one applicant to another.

During the interview, the interviewer should feel free to take notes regarding the applicant’s responses to questions and qualifications (directly on the list of questions if possible). Employers may also make notes about an applicant’s:

  • general appearance (such as, professional or unprofessional)
  • interpersonal communication skills
  • attitude
  • other subjective factors concerning the applicant’s ability to perform the job in question. 

The interviewer is encouraged to be careful about the type of notes he or she writes down concerning an applicant, because such notes likely will be subject to disclosure in any later lawsuit or charge of discrimination. Notes relating directly or indirectly (through codes) to an applicant’s protected status category will be strong evidence of illegal discrimination and must be avoided. Only factors relevant to an applicant’s ability to perform the job should be considered and/or recorded during the hiring process.

Interview questions regarding disabilities

Things that can be done

  • Employers are permitted to ask limited questions about reasonable accommodation if they reasonably believe that the applicant may need accommodation because of an obvious or voluntarily disclosed disability, or where the applicant has disclosed a need for accommodation.
  • Employers may ask if the applicant will need an accommodation to perform a specific job duty, and if the answer is yes, the employer may then ask what the accommodation would be.
  • DO attach a job description to the application form with information about specific job functions, or simply describe the functions to the applicant during the job interview. The interviewer can then ask the applicant:
    • "Are you able to perform the essential functions of the job including attendance requirements, if provided with reasonable accommodations for disability-related reasons?"
  • DO ask questions regarding ability to perform all job functions or duties, not merely those functions or duties that are “essential” to the job.
  • DO provide information on the employer’s regular work hours, leave policies, and any special attendance requirements, and ask if the applicant can meet these requirements.
  • DO obtain information about the applicant’s previous work attendance on the application form, during the interview, or in reference checks, without referring to illness or disability.

Things that cannot be done

  • DO NOT ask whether the applicant ever suffered from or was treated for conditions or diseases presented as a checklist.
  • DO NOT ask the applicant to list conditions or diseases for which he or she has been treated.
  • DO NOT ask whether the applicant has ever been hospitalized and if so, for what condition(s).
  • DO NOT ask whether the applicant has ever been treated by a psychiatrist or psychologist.
  • DO NOT ask whether the applicant has ever been treated for any mental condition.
  • DO NOT ask whether there is any health-related reason the applicant may not be able to perform the job for which he or she is applying.
  • DO NOT ask whether the applicant has had a major illness.
  • DO NOT ask the applicant how many days he or she was absent from work because of illness last year.
  • DO NOT ask whether the applicant has any physical defects or impairments that preclude him/her from performing certain kinds of work and/or to describe such defects or impairments and the specific work limitations.
  • DO NOT ask whether the applicant has any disability or impairments that may affect he or she performance in the position for which he or she is applying.
  • DO NOT ask whether the applicant is currently taking any prescribed drugs.
  • DO NOT ask whether the applicant has ever been treated for drug addiction or alcoholism.
  • DO NOT ask whether the applicant has ever filed a workers’ compensation claim.

Not only should employers not ask an applicant the preceding questions, but they should also not ask an applicant’s references any of these questions regarding the applicant.

Pre-employment Testing

An employer may condition a job offer on the satisfactory result of a post-offer medical inquiry or examination if this inquiry or examination is required of all entering employees in the same job category. Under the ADA, a post-offer inquiry does not have to be job related. However, if an individual is not hired because a post-offer inquiry reveals that the applicant has a disability, the reason for not hiring that individual must be job related and necessary for the business or be because employing the applicant would be a direct threat to health or safety. The employer also must show that no reasonable accommodation was available that would have enabled this individual to perform the essential job functions.

Colorado regulations are more restrictive than the ADA. Employers cannot use employment tests or other selection criteria that screen out or tend to screen out persons with disabilities unless the selection criteria is job-related for the position in question. Employers also cannot use specific selection criteria if alternative criteria are available that screens out or tends to screen out fewer persons with disabilities. When using selection criteria, an employer must ensure that when administered to an applicant or employee with a disability that impairs the individual’s sensory, manual, or speaking skills, the results of the test accurately reflect the individual’s job skills, aptitude, or whatever fact the test purports to measure, rather than reflecting the individual’s impairment. The ADA does not pre-empt state laws, such as Colorado’s, that provide greater protection. Therefore, employers must comply with Colorado regulations with respect to employment tests and selection criteria.

Medical examinations

Whether a medical inquiry is permissible depends on when it is made:

  • pre-offer
  • post-offer
  • post-hire.

Pre-offer

If an offer of employment has not been extended to an applicant, an employer cannot ask questions about disability or require an applicant to have a medical examination. With certain limitations, however, an employer may ask the applicant to describe or demonstrate his/her ability to perform the job. An employer can therefore require a physical agility test as long as it is given to all similarly situated applicants regardless of disability. If a test screens out individuals with disabilities, the test must be job related and consistent with business necessity.

Post-offer

Inquiries can be made of a potential employee after an employer makes a “real job offer” to such individual. A job offer can be conditioned on the results of a post-offer examination if the employer has evaluated all relevant non-medical information that it reasonably could have obtained and analyzed prior to giving the offer. 

To require a post-offer/pre-employment examination in Colorado, the following requirements must be met:

  • the examination must be job-related for the position and question and there cannot be available an alternative job-related test that screens out fewer persons with disabilities
  • all entering employees in the same job category must be subjected to the examination/inquiry regardless of disability.

Post-hire

Under the ADA, medical examinations and inquiries about disabilities cannot be made of employees unless the examination or inquiry is shown to be “job-related and consistent with business necessity.” For instance, an employer could request medical information when:

  • it has a reasonable belief, based on objective evidence, that a particular employee will be unable to perform the essential job functions or will pose a direct threat because of a medical condition
  • when an employer receives a request for a reasonable accommodation and the disability and/or need for accommodation is not obvious.

Medical records

Medical information obtained as a result of examinations or inquiries must be kept confidential. It cannot be kept in the personnel file, rather it must be kept on separate forms in separate medical files. Medical information can be shared on a limited basis, including:

  • supervisors/managers may be informed of necessary restrictions on the work or duties of the employee and necessary accommodations
  • first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment.

Applicant performance and aptitude testing

An employer may decide to use a pre-employment test as a way to predict the future job performance of an applicant. While these tests are legal, employers should still exercise caution. For instance, pre-employment tests that tend to screen out individuals with disabilities may constitute discrimination under the ADA unless they are job related and necessary for the business. Pre-employment tests can also violate Title VII if they disproportionately exclude people in a particular group by race, sex, or another covered basis unless the employer can justify the test or procedure under the law. Tests should be administered without regard to protected characteristics such as race, color, national origin, sex, religion, age (40 and older), or disability. With respect to the ADA, tests must accurately reflect the skills, aptitude, or other factors being measured and not reflect an individual’s impairment (such as, for instance, impaired manual, speaking, or sensory skills).

Duty to accommodate

Under the ADA and Colorado law, the duty to accommodate disabilities exists in the development, administration, and scoring of pre-employment tests. The ADA requires employers to select and administer pre-employment tests in a way that ensures that individuals with disabilities have a fair opportunity to demonstrate the job-related skills the tests seek to measure. Employers must offer reasonable accommodations to disabled applicants to enable them to demonstrate their qualifications during the hiring process. An employer does not have to provide an applicant with a reasonable accommodation or alternative method of testing if the pre-employment test is measuring skills necessary to perform an essential function of the job. 

Requesting accommodation

An employer is allowed to tell applicants what the hiring process involves and ask applicants whether they will need a reasonable accommodation for this process. The employer is also permitted to request documentation of the need for the requested accommodation unless the disability is obvious. The employer then may seek independent verification of the need rather than solely relying on the individual’s treating physician. Should the applicant fail to notify the employer of his/her need for the accommodation before the test, however, the employer is still responsible for providing the accommodation if the applicant first becomes aware of the need during the test administration. Because an employer must make a reasonable accommodation for a qualified individual’s known physical or mental limitations, the duty to determine if a reasonable accommodation is necessary is not triggered until there is a request from the applicant. 

Types of accommodation

Testing accommodations must be geared to the particular individual’s needs and should be determined on a case-by-case basis. For instance, an applicant with dyslexia may be entitled to an oral test, unless reading skills are required to perform an essential job function. Likewise, if an applicant is hearing impaired, an employer may need to provide written questions to the applicant instead of conducting an oral interview. Testing accommodations may include ensuring accessibility to the testing site, providing the test in an alternate format, providing readers or interpreters, or permitting additional time to complete the test. An employer may consult with the individual for suggested accommodations.

Undue hardship

The employer does not have to implement an accommodation that would impose an undue hardship. An undue hardship is an action requiring significant difficulty or expense based on a variety of factors, including the nature and cost of the accommodation and the overall financial resources of the employer. If more than one possible non-hardship accommodation exists, the employer may choose which one to implement. The employer may select the simpler or less expensive accommodation so long as it provides meaningful equal employment opportunity. While the choice of the applicant is a primary consideration, employers are not required to provide applicants the accommodation of their choice provided the accommodation reasonably enables the applicant to perform the test. Employers should keep in mind, however, that the individual applicant’s active participation in identifying and selecting accommodations is an important factor in any lawsuits over accommodation.

Drug and alcohol testing

Federal law does not prevent an employer from issuing a pre-employment drug test. Accordingly, it is not a violation of the ADA for employers to use drug tests to find out if applicants are currently using illegal drugs. Under the ADA, a drug test is not considered a “medical examination” and therefore is not prohibited prior to employment. Alcohol tests, however, are considered medical examinations under the ADA. Therefore, an employer may test for alcohol use only after making a conditional offer of employment. An individual who abuses alcohol may be considered disabled if he or she is a recovering alcoholic. An employer can withdraw the offer based on the test result, however, if failing the alcohol test establishes that the applicant is unable to perform his/her job.

The ADA specifically provides that any applicant who is currently an illegal drug user is not a qualified individual with a disability. People who have been rehabilitated and do not currently use drugs illegally, however, may be protected by the ADA. In addition to having an approved substance abuse testing program, an employer should follow three general requirements for drug tests:

  1. the drug test must be mandatory for all incoming employees without taking into consideration any specific disability
  1. the employer must store information and test results in confidential medical files
  1. the results must be in accordance with the ADA as a whole.

If an applicant’s test results are positive for illegal drug use, the employer may ask the job applicant whether he or she uses lawful drugs or if there are other possible explanations for the positive result. The employer’s ability to test is limited to only testing for illegal drugs.

Like many employment actions, drug testing can also trigger Title VII claims, which prohibit discrimination on the basis of race, color, religion, sex, or national origin. If drug tests are not administered equally, it could generate a claim of discrimination on the basis of one of these protected categories. Accordingly, employers should implement drug-testing policies that are administered across the board, without regard to race or any other protected characteristic. Ultimately, whatever policy is in place must be applied fairly and equally to all employees.

Colorado's marijuana law

Amendment 64 to the Colorado Constitution regulates the use of marijuana similarly to the way in which alcohol is regulated. Persons 21 years of age or older are legally allowed to possess up to an ounce of marijuana, as well as six marijuana plants, with up to three of those in flower at any given time. The law also contains provisions for granting licenses to marijuana establishments. However, this does not grant employee work rights with respect to marijuana. In fact, Amendment 64 specifically states:

“Nothing in this section is intended to require an employer to permit or accommodate the use … of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

Under Colorado law, an employer may not terminate an employee for engaging in lawful activity off the premises of the employer during non-working hours. Employees could potentially argue that because recreational marijuana use is now legal under Colorado law, an employer cannot prohibit an employee from engaging in such use while the employee is off duty. However, employers should keep a couple of things in mind with respect to their ability to drug test and/or regulate employees’ marijuana use. Marijuana possession and use remains illegal under the federal Controlled Substances Act. Even with the passage of Amendment 64, recreational marijuana use may not be a “lawful” off-duty activity. Also, the lawful off-duty conduct statute is subject to a couple of exceptions:

  • where the restriction relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee
  • where the restriction is necessary to avoid conflict of interest with regard to responsibilities of the employer, or the appearance of such a conflict of interest.

Both of these provisions could potentially allow for the prohibition of recreational, off-duty use of marijuana by a company’s employees. In 2015, the Colorado Supreme Court ruled that off-duty marijuana use for medicinal purposes by an employee with a “red card” is not considered “lawful” off-duty conduct. The court ruled that because marijuana remains federally unlawful, the Lawful Off-Duty Statute does not protect an employee from negative employment actions for the use of marijuana off-duty if the employer has a consistently applied zero-tolerance drug policy (Coats v. Dish Network, LLC).

Drug testing for marijuana is still permissible, and employers can still take action against employees found to be in violation of carefully crafted drug policies. To make an employer’s position as clear as possible, references to federal law, specifically the Controlled Substances Act, in drug testing policies should be included to ensure that employees are aware of the substances for which a positive test will result in termination or other discipline.

Lie-detector tests

Federal law governs the use of lie-detector tests in the workplace. The Employee Polygraph Protection Act (EPPA) prohibits most private employers from using lie detector tests for pre-employment screening. A lie-detector test is broadly defined as a polygraph, deceptograph, voice stress analyzer, psychological stress evaluator or any similar device, whether mechanical or electrical, which is used to measure the honesty or dishonesty of an individual. The EPPA applies to all employers engaged in or affecting commerce. Federal, state and local governments are not affected by the law. Also, the law does not apply to tests given by the federal government to certain individuals engaged in national security-related activities. 

As a general rule, an employer cannot require a job applicant to take a lie-detector test as a condition of his or her employment. The EPPA does, however, authorize lie-detector tests under very limited circumstances and subject to restrictions, typically only for certain prospective employees of security service firms (armored car, alarm and guard) and of pharmaceutical manufacturers, distributors and dispensers. In the instances where polygraph tests are permitted, they are subject to numerous and strict standards concerning the conduct and length of the test. Further, examinees have a right:

  • to written notice before testing
  • to refuse or discontinue testing
  • not to be asked degrading or unnecessarily intrusive questions
  • not to have the results disclosed to unauthorized persons.

The act does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests. Colorado does not have any additional laws regarding lie detector tests in employment.

Use of artificial intelligence in the hiring process

On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) issued a “Technical Assistance” (TA) document addressing compliance with ADA requirements and agency policy when using artificial intelligence (AI) and other software to hire and assess employees. The agency also published a short “Tips for Workers” summary of this guidance. Neither of these documents has the force or effect of law, nor are they binding on employers. The guidance is meant to be educational, “so that people with disabilities know their rights and employers can take action to avoid discrimination.” There are several take-aways regarding the Commission’s likely expectations and areas of focus when regulating the use of such tools in hiring or assessing employees:

  • Accessibility: Employers should account for the fact that on-line/interactive tools may not be easily accessed or used by those with visual, auditory or other impairment.
  • Accommodation: Barring undue hardship, employers should provide alternatives to the use or application of these tools if an individual’s disability renders the use of the tool more difficult or the accuracy of the tool’s assessment less reliable.
  • Accommodation, II: Beyond providing reasonable accommodations in accessing/using these tools, employers should ensure that the tools assess an individual in the context of any reasonable accommodation they are likely to be given when performing their job.
  • ADA vs. Title VII: The EEOC stresses that disability bias requires different design and testing criteria than does Title VII discrimination, such as access considerations and the potential for inadvertent disability-related inquiries or medical examinations.
  • Promising Practices: Noting that employers are responsible for ADA-violating outcomes even when a software tool is created or used by a third-party vendor or agent, the Commission provides examples of so-called “Promising Practices” that employers can engage in to demonstrate good-faith efforts to meet ADA requirements.

The TA document uses various illustrative examples of the tools the EEOC aims to regulate. These range from résumé scanners and virtual assistants/chatbots to video-interviewing software and software that tests an individual’s personality, aptitude, skills and “perceived ‘cultural fit.’” Employers using any of these tools in their recruiting, hiring and review of applicants and employees (which, by some estimates, is up to 83% of employers) should take careful note of the EEOC’s position as to where these tools may run afoul of the ADA.

The TA document focuses broadly on three themes, specifically, how the use of algorithmic decision-making may violate the ADA with respect to: (1) reasonable accommodation for applicants and employees; (2) where AI decision-making tools may “screen out” individuals with disabilities; and (3) where an AI-based tool may violate ADA restrictions on disability-related inquiries. You can access the document online in its entirety at:

  • https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence

Fingerprinting

There are no federal or state restrictions preventing a private employer from requiring applicants to undergo fingerprinting. However, should an employer decide to fingerprint applicants, it should create a policy that is uniformly applied to all applicants in a job category.

Employment at-will doctrine

Colorado adheres to what is called the “employment at-will” doctrine. “Employment at-will” means that when an employee is hired for an indefinite duration either the employer or the employee may terminate the employment relationship for any reason at all, other than an illegal reason. However, there are many exceptions to this doctrine, which fall into four principal categories:

  1. federal statutory exceptions
  1. state law exceptions
  1. the public-policy exception
  1. the implied contract and promissory-estoppel exceptions.

One common instance would be the existence of a written, 30-day notice of termination policy, or an agreement that the employee will only be terminated for “just cause.” In either case, the employee has the burden of proving that the communication was made and that the employer failed to follow its terms.

For employers, the employment at-will doctrine is particularly important because it limits the claims for wrongful discharge and breach of contract that can be brought by employees against their former employers. Employers can further protect themselves from such claims by putting clear disclaimers in applications, employee handbooks, and other published policies, stating that there is no employment contract, and that employees may be terminated or laid off at any time and for any reason. This will not necessarily prevent liability for fraud or misrepresentation in the hiring process; in Colorado, if the employer intentionally or negligently misrepresents a fact, opinion, intention, or law in order to persuade the employee to do something and the employee does it, and suffers a loss because of it, the employer may be liable for that loss.

Verifying new hires: I-9 and E-Verify

Employers are required to verify the work authorized status of all new hires on the new hire’s first day of employment (if the employee is being hired for fewer than three business days), or within three business days of the first day of employment. This verification is accomplished through the completion of the Form I-9. The Form I-9 is simple. Noncompliance may carry both civil and criminal penalties, which are discussed in Chapter 05: Immigration.

Public and private employers who conduct business in the state, are required to keep a written or electronic copy of the employee’s Form I-9 document(s) and retain them for the term of employment for each employee.

Note: The I-9 Form is updated every 22-24 months. Employers must ensure that they are using the most updated I-9 when hiring and re-hiring employees. The current form is dated 10/21/2019 on the bottom left-hand corner and expires 10/31/2022.

The I-9 form

The I-9 form is available for download at:

To fill out the I-9 form, the employee completes Section One, including:

  • employee's name
  • employee's maiden name (if any)
  • employee's address
  • employee's Social Security number
  • employee's date of birth.

The employee then attests under penalty of perjury that he or she is either:

  • a U.S. citizen
  • a U.S. national
  • a permanent resident of the United States
  • an alien authorized to work in the United States

and then signs and dates the form.

Then, the employer examines the employee’s original identity and citizenship/work authorization documents , and completes Section Two, recording the document information on the I-9. The employer must be careful to complete Section Two based on either one of the following:

  1. a document from list A of the I-9 form (for instance, a U.S. passport)
  1. a combination of documents from list B and C (for instance, a driver's license and unrestricted social security card).

Lists A, B and C indicate the document or combination of documents designated by statute and regulation as acceptable for establishing identity and employment authorization. Upon examining the document, the employer must attest that the document reasonably appears both to be genuine and to relate to the individual presenting it.

The employer is obligated to reverify the I-9 when an employee’s non-immigrant status or employment authorization card is expiring. The employee will present the renewed document to the employer, who will complete Section Three by recording the document information and signing and dating. Reverification should be done on or before the expiration date shown on the prior document. E-Verify (an online employment verification service discussed below) has a feature that will remind employers of expiring documents so the reverification can be timely completed.

Recordkeeping requirements

Employers are required to retain completed I-9 forms in both of the following situations:

  1. for as long as the employee is employed by the organization
  1. if the employee is no longer employed, for either three years from date of hire or one year from date of termination, whichever is longer.

The USCIS Verification Division, responsible for administering both the Form I-9 (Employment Eligibility Verification) and E-Verify has provided significant guidance to employers regarding the I-9 obligation in its “Handbook for Employers, Instructions for Completing Form I-9” (M-274) found at:

The government has stepped up enforcement of the employer’s I-9 obligation by conducting audits. The agency will visit the employer and request a list of current employees, and may request all or some I-9’s, looking for patterns of form errors or mistakes or indicators of fraud or misconduct. The employer has three days to comply with such audit requests. As such, it is important for employers to maintain accurate and organized I-9 forms.

E-Verify

Employers can further confirm employment eligibility by participating in E-Verify. E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. Additional rules apply to employers who utilize E-Verify. For instance, the employee must provide his/her social security number. Additionally, the employer must retain a photo identification document for comparison purposes. Further information about E-Verify may be accessed at:

For employers that contract with state agencies, use of E-Verify is required by Colorado state law.

Colorado employment eligibility verification process

As of August 10, 2016, Colorado employers are no longer obligated to complete and submit duplicate state-level employment verification. The Colorado Affirmation of Legal Status Form is no longer required of employers, nor is its retention with separate copies of verification documents. The repeal of the state verification process is intended to ease the burden on employers of duplicate verification processes and does not change verification requirements nor affect the state or federal Department of Labor rights and responsibilities in any way.

Discrimination during authorization

Employers should be careful not to engage in unlawful discrimination based on citizenship or national origin when completing the Form I-9. The U.S. Citizenship and Immigration Services (USCIS), a bureau of the U.S. Department of Homeland Security, advises that:

  • Employers should not set different employment eligibility verification standards or require that different documents be presented by employees because of their national origin and citizenship status. Each employee must be allowed to choose the documents that he or she will present from the lists of acceptable Form I-9 documents.
  • Employers should not request to see employment eligibility verification documents before hire and completion of Form I-9 because someone looks or sounds “foreign,” or because someone states that he or she is not a U.S. citizen.
  • Employers should not refuse to accept a document, or refuse to hire an individual, because a document has a future expira­tion date.
  • Employers should not request that, during reverification, an employee present a new unexpired employment authorization document if he or she presented one during initial verification.
  • Employers should not limit jobs to U.S. citizens unless U.S. citizenship is required for the specific position by law; regulation; executive order; or federal, state, or local govern­ment contract. On an individual basis, an employer may legally prefer a U.S. citizen or national over an equally qualified alien to fill a specific positio but may not adopt a blanket policy of always preferring citizens over non-citizens.

Tax forms

Income tax is withheld from the pay of most employees. Upon hire, each employee must complete an IRS Form W-4, which, once signed and returned, should be kept in the employee’s personnel file. The amount of income tax withheld from an employee’s pay depends on the amount the employee earns and the information provided to the employer on the employee’s  Form W-4. Three types of information determine the level of withholding:

  1. whether the employee withholds at the single rate or at the lower married rate
  1. the number of withholding allowances the employee claims
  1. whether the employee requests an additional amount of pay to be withheld.

If an employee does not submit a W-4, the employer is required to withhold at the highest rate as if the employee is single and claims no withholding allowances.

During the course of employment, an employee may experience changes to marital status or other events that necessitate revisions to the employee’s exemptions, adjustments, deductions, or credits that the employee expects to claim on his/her tax returns. In these circumstances, an employee may provide a revised W-4 to change withholding status or the claimed number of allowances. Generally, an employee can also submit a new W-4 whenever he or she wishes to change the number of withholding allowances for any other reason. In all cases, the deadline for an employer putting into effect any changes made by an employee is the start of the first payroll period ending 30 or more days after the employee submits a new or revised W-4.

The W-4 form is available for download at:

Health insurance notices

All employers covered by the Fair Labor Standards Act (FLSA) must provide information about health insurance marketplaces (also called the Health Insurance Exchanges) to new employees within 14 days of their start date. Model versions of these notices can be found online at:

Reporting new hires

As part of the national effort to enforce child support orders, all employers in Colorado must report specific information regarding newly hired employees to the New Hire Reporting Program of the State Directory of New Hires (SDNH). Multi-state employers may report newly hired employees to the state in which they are working or may select one state to which to report all new hires. This information must be reported:

  • within 20 days after the date of hire
  • by the first regularly scheduled payroll following the date of hire, if such payroll is after the expiration of the 20-day period.

Even if the employee quits or is terminated within seven days, the report still must be filed. For employees who are laid off or on leave and returning to employment, a new report needs to be filed only if a new W-4 is also being filed for that employee. Employers may use the following methods to report to the SDNH:

  • by faxing a W-4 or equivalent form to (303) 297-2595
  • through U.S. mail by sending a W-4 or equivalent form or USB, Magnetic Media or Cartridge to Colorado State Directory of New Hires, P.O. Box 2920, Denver, CO 80201-2920.

Employers can find more information and the filing instructions and forms at: