8-40-301. Scope of term "employee" - definition.
Statute text
(1) (a) "Employee" excludes any person employed by a passenger tramway area operator, as defined in section 12-150-103 (1), 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.
(b) (I) "Employee" excludes any person employed by an out-of-state employer performing incidental work in Colorado where the employee is covered at the time of injury under the workers' compensation act of another state regardless of where the contract for employment was created.
(II) For purposes of this section, "incidental work" means work that is randomly or fortuitously in Colorado.
(III) This section only applies to a workers' compensation act of another state that includes a reciprocal provision exempting Colorado employers from liability under the other state's act for incidental work.
(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 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 17-24-119 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 17-24-122, 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) [Editor's note: This version of subsection (7) is effective until July 1, 2024.] 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 Community-based 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 community-centered board or the service agency.
(7) [Editor's note: This version of subsection (7) is effective July 1, 2024.] Persons who provide host home services as part of residential services and supports, as described in section 25.5-10-206 (1)(e), for an eligible person, as defined in section 25.5-6-403 (2)(a), pursuant to the "Home- and Community-based Services for Persons with Developmental Disabilities Act", part 4 of article 6 of title 25.5, and pursuant to a contract with a service agency as defined in section 25.5-10-202 (34) are not considered employees of the service agency.
(8) For the purposes of articles 40 to 47 of this title 8, "employee" excludes any person who performs services for more than one employer at a race meet as defined by section 44-32-102 (20) or at a horse track as defined by section 44-32-102 (8).
(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.
History
Source: L. 90: Entire article R&RE, p. 473, 1, effective July 1. L. 92: (5) and (6) added, p. 1798, 1, effective June 6. L. 93: (3) amended, p. 2129, 3, effective September 1. L. 94: (4) amended, p. 1288, 1, effective July 1. L. 95: (1) and (3)(c) amended, p. 1091, 1, effective May 31. L. 97: (3)(c) amended, p. 1031, 66, effective August 6. L. 2000: (7) added, p. 1497, 1, effective August 2. L. 2002: (6) amended, p. 1882, 28, effective July 1. L. 2003: (8) added, p. 728, 1, effective March 20. L. 2006: (7) amended, p. 1998, 30, effective July 1. L. 2010: (3)(a) amended, (HB 10-1109), ch. 171, p. 606, 1, effective August 11; (9) added, (HB 10-1076), ch. 162, p. 566, 2, effective August 11. L. 2013: (7) amended, (HB 13-1314), ch. 323, p. 1800, 17, effective March 1, 2014. L. 2017: (1) amended, (HB 17-1119), ch. 317, p. 1705, 2, effective July 1. L. 2018: (8) amended, (HB 18-1024), ch. 26, p. 321, 4, effective October 1. L. 2019: (1)(a) amended, (HB 19-1172), ch. 136, p. 1647, 20, effective October 1. L. 2021: (7) amended, (HB 21-1187), ch. 83, p. 324, 4, effective July 1, 2024.
Annotations
Editor's note: This section is similar to former 8-41-106 as it existed prior to 1990.
Annotations
ANNOTATION
Annotations
Annotator's note. Since 8-40-301 is similar to 8-41-106 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.
Inmates are not employees of state or county. Orr v. Indus. Comm'n, 691 P.2d 1145 (Colo. App. 1984), att'd, 716 P.2d 1106 (Colo. 1986).
Subsection (5) is not ambiguous and includes a driver who is working for an independent contractor under a conforming lease with a contract carrier. FFE Trans. Servs. v. Indus. Claim Appeals Office, 93 P.3d 630 (Colo. App. 2004).
The word "under" in subsection (5) is not ambiguous. FFE Trans. Servs. v. Indus. Claim Appeals Office, 93 P.3d 630 (Colo. App. 2004).
The legislative intent appears clear to exclude independent contractors and their drivers from the class of statutory employees. FFE Trans. Servs. v. Indus. Claim Appeals Office, 93 P.3d 630 (Colo. App. 2004).
Had the general assembly intended to exclude only independent contractors from the provisions of this section, it would not have allowed independent contractors to use assistants pursuant to 40-11.5-102 (1)(f). FFE Trans. Servs. v. Indus. Claim Appeals Office, 93 P.3d 630 (Colo. App. 2004).
The traditional test set forth in City and County of Denver v. Lee, 450 P.2d 352 (Colo. 1969), for determining when recreational activities fall within the course and scope of employment remain valid under subsection (1) as amended in 1989 in determining whether an employee engaged in a recreational activity is within the coverage of the workers' compensation act. Karlin v. Conrad, 876 P.2d 64 (Colo. App. 1993).
Exclusion provided by subsection (5) is conditional not absolute. It takes effect only when the lease agreement required by 40-11.5-102 includes complying coverage. USF Distribution Servs., Inc. v. Indus. Claim Appeals Office, 111 P.3d 529 (Colo. App. 2004).
Ski instructor injured while skiing recreationally was not entitled to workers' compensation benefits as injury did not occur in course and scope of employment. Dunavin v. Monarch Recreation Corp., 812 P.2d 719 (Colo. App. 1991).
Evidence that claimant agreed to act as a member of the ski patrol only after negotiating with the supervisor to receive a special benefit is sufficient to support the administrative law judge's finding that, without such consideration, claimant would have refused to render any services as a patrol member and therefore claimant was not a volunteer under the statute. Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357 (Colo. App. 1992).
Ski patrol worker who negotiated for a ski pass in lieu of salary in exchange for services was not a "volunteer" for purpose of exclusion from coverage under this article. Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994).
Under this section, any employee who participates in employer-sponsored recreation due to pressure exerted by employer rather than at employee's own initiative is entitled to benefits for injuries sustained during activity. However, any employee who is injured while voluntarily engaging, upon his own initiative, in recreational activity which does not benefit the employer or fulfill any job duties is not entitled to compensation. Dunavin v. Monarch Recreation Corp., 812 P.2d 719 (Colo. App. 1991).
A leased driver was not limited to workers' compensation benefits for injuries received while performing duties within the lease agreement. The leased driver was not an employee for purposes of workers' compensation because section (5)(b) is an exception to the more general workers' compensation statutes. Scott v. Matlack, Inc., 1 P.3d 185 (Colo. App. 1999), rev'd on other grounds, 39 P.3d 1160 (Colo. 2002).
Leased driver was entitled to benefits at least equivalent to workers' compensation benefits under subsection (6). USF Distribution Servs., Inc. v. Indus. Claim Appeals Office, 111 P.3d 529 (Colo. App. 2004).
The definition of an employee entitled to coverage under this act includes "aliens" without distinguishing between legal and illegal aliens and therefore does not preclude, as a matter of law, an illegal alien from proving an entitlement to benefits. Champion Auto Body v. Indus. Claim Appeals Office, 950 P.2d 671 (Colo. App. 1997).