Businesses ask court for flexibility to determine employee drug policies
Employers need flexibility to craft drug policies necessary to preserve safety and accountability, says Colorado Civil Justice League in a brief field today with Colorado Supreme Court.
Read CCJL’s Brief HERE.
Coats v. Dish Network is a highly-scrutinized case that tests the limits of Colorado’s Amendment 20 which legalized “medical marijuana” under state law. Plaintiff Brandon Coats, a quadriplegic who used medical-marijuana, was fired by Dish Network after he failed a drug test, violating the employer’s policy that prohibited marijuana use.
Colorado’s lawful off-duty activity statute (LODAS) prohibits employers from terminating an employee for “engaging in any lawful activity” off the job. Read more
No man’s life, liberty or property are safe while the legislature is in session – Mark Twain
Now Coloradans can breath easily for a few months as this year’s Legislature caused little damage but also produced little progress.
On the litigation front, thanks to a bipartisan coalition in the Colorado Senate, trial lawyers were forced to trim their sails – so businesses and consumers faced fewer threats of jackpot justice interfering with consumer choice.
The limited good news emanating from the legislature also passed on a bipartisan basis as two bills offering protections against litigation passed unanimously. Read more
A bill aimed at easing the litigation logjam that has stifled construction of multi-family owner-occupied housing died on Monday – not because it was voted down, but because of procedural maneuvers by Senate President Morgan Carroll (D-Aurora).
Senate Bill 220, sponsored by Sen. Jessie Ulibarri (D-Adams County) and Sen. Mark Scheffel (R-Parker), passed the Senate State Affairs Committee on Monday, but with just three days left in the legislative session, the bill needed to pass to the full Senate on the same day. That became virtually impossible when Carroll, a trial lawyer, used her authority as senate president to needlessly assign the bill to two committees – meaning both committees would also need to act on the bill on the same day and then pass it to the full Senate. Read more
With just three days to go in this year’s legislative session, the long-awaited, frequently-rumored bill aimed at easing the litigation logjam that has halted construction of owner-occupied multi-family housing in Colorado gets its first hearing today.
Senate Bill 219 by Sen. Jessie Ulibarri (D-Adams County) and Sen. Mark Scheffel (R-Parker) attempts to resolve construction defects in a housing development through a much more inclusive process that requires participation and approval by a majority of homeowners. Today, a small minority of owners, under the influence of a smooth-talking plaintiffs lawyer, can effectively put a cloud of litigation over the homes of countless other families by filing a lawsuit that subsequently makes selling or buying other units next to impossible.
Let’s give credit to Ulibarri: although he probably introduces more bills likely to generate litigation than any other legislator, he is generally reasonable and willing to consider other, less adversarial means of resolving a problem that he’s identified. Ulibarri sunk his teeth into this issue and came up with this bill. In fact, he apparently came up with this bill more than a month ago, but got sidetracked by struggles with legislative leadership whose priority seems to be protecting the pockets of the aforementioned smooth-talking plaintiffs lawyers rather than resolving a problem that vexes homeowners, as well as homebuilders. After all, and this may come as news to legislative leadership, would-be homebuyers need homebuilders in order to have homes they can buy. Read more
Thanks to a bipartisan group of common-sense legislators, small businesses will have a chance to fix violations that impair access to people with disabilities under Senate Bill 118, which attempts to harmonize Colorado disability law with the federal Americans with Disabilities Act. Businesses that fix an accessibility problem within 30 days after a complaint is filed are entitled to a 50 percent reduction in fines that are imposed by the bill.
The bipartisan amendment to SB 118 includes a prohibition on “stacking” damages so that a business cannot be subjected to an additional fine for each day the violation exists and ensures that all defenses available under federal law are likewise available under state law. The bill now moves to the House for consideration.
In other legislative action: Read more
Procrastinators are working overtime at the State Capitol with just over two weeks left in the legislative session. Four new bills with potential bearing on Colorado’s litigation climate have been introduced, and with another which had been idling in its original committee since January has finally moved forward.
The ever-ambitious Sen. Jessie Ulibarri (D-Adams County) introduced a bill creating a new family leave insurance program to be administered by state government. Senate Bill 196 would provide up to 12 weeks of compensation for employees who take leave of employment. The program would be funded by a new payroll deduction of 0.42 percent of gross pay from all employees of Colorado businesses. This bill wouldn’t be on our radar, except that it creates a new liability for employers who are accused of violating the law.
Workers compensation was the topic of many discussions last fall, but the resulting bills on that topic were only recently introduced. The good news is that neither Senate Bill 191 nor House Bill 1383 make changes to existing no-fault system. We’re keeping an eye on them, just in case!
Opponents of the upcoming personhood ballot initiative responded to our comments noting certain ironies and inconsistencies in their pre-emptive House Bill 1324. After a committee hearing two weeks ago, no vote was taken and just yesterday an apparent replacement bill, House Bill 1388, was introduced. The new bill would make civil damages for wrongful termination of a pregnancy much more consistent with the existing wrongful death statute.
Finally, Senate Bill 118, introduced on Jan. 27, received its first committee hearing on Monday, April 21, after being largely re-written. The bill to increase penalties for disability discrimination has been substantially modified but still contains a patently unfair fee-shifting provision that allows recovery of attorney fees by successful plaintiffs – but not by defendants whose time and resources were wasted by specious claims.
Procrastinators surely are not yet finished. After all, the construction affordability and liability bill that is a legislative priority for Denver metro mayors still has not been introduced.
Now that both chambers have debated and amended Colorado’s state budget, committees return to work this week when four civil justice bills are slated for consideration, culminating with Friday’s Senate Appropriations Committee meeting on Senate Bill 5.
The bill by Sen. Jessie Ulibarri (D-Adams County) and Rep. Jonathan Singer (D-Longmont) was amended in both Senate Judiciary and Senate Finance more than two months ago but has been parked in Senate Appropriations, pending resolution of the state budget, because it requires $460,907 in new expenditures. Read more
While legislators turned their attention to the state budget last week, Governor Hickenlooper signed three bills – a mixed lot at that:
- Senate Bill 138 provides greater protection from liability for volunteers and emergencies, although its efficacy was watered down by amendments in the Senate State Affairs Committee. It passed the Senate, 35-0, and House, 63-0 with two excused.
- House Bill 1065, which tramples on freedom to contract by prohibiting the inclusion of an indemnity clause in motor-carrier contracts, gained momentum in the Senate (passing 33-2) after a contentious battle in the House (41-23, one excused).
- Senate Bill 97 clarified the boundaries of liability between governmental entities and insurance companies when the latter employ privately-hired firefighters to protect insured customers against wildfires. This bill passed the Senate, 35-0, and the House, 63-0 with two excused.
Little action on civil justice bills is likely in the coming week, as none are scheduled for a hearing until Tuesday, April 8. Meanwhile, House Bill 1302 (double damages for creditor claims) cleared House Judiciary on a 10-0 vote after being significantly amended to resolve many concerns which CCJL had with the original version (see Legislative Update). The bill could be debated in the House of Representatives beginning today.
Civil remedies available to women who lose their unborn children as a result of the wrongful acts of another would be defined by House Bill 1324, which was recently introduced. The bill is a defensive measure by pro-choice advocates in advance of the impending debate over the latest citizen initiative by some pro-life groups to define personhood in the Colorado constitution.
As introduced, the bill creates specific civil remedies for “unlawful termination of a pregnancy,” which was defined as a specific crime by House Bill 1154 (2013). The bill specifically exempts most health care professionals and facilities from liability.
As introduced, the bill has its share of oddities – not the least of which is that the value of a case involving an unborn child is greater than that of a case involving the death of a child who is born. In the former, a woman could recover damages and costs, plus attorney fees. However, attorney fees are not available under the existing wrongful death statute.
The bill also potentially expands litigation by turning minor auto accidents into major lawsuits if, for example, a woman who did not know she was pregnant at the time of an accident subsequently suffers a miscarriage which could then arguably be related to the accident.