CO Code § 40-11.5-102 (2021)
2021 Colorado Code|Title 40 - Utilities|Article 11.5 - Independent Contractors - Motor Carriers|§ 40-11.5-102. Lease Provisions - Definitions - Rules

  Leases between motor carriers or contract carriers and independent contractors may contain, but need not be limited to, the following provisions:     The independent contractor, working with a certificated taxi or limousine carrier, may either lease a motor vehicle owned by the certificated carrier or may own the motor vehicle and lease it to the certificated carrier, who may release the vehicle to the independent contractor. (a) (I) The independent contractor, working with a certificated taxi or limousine carrier, may either lease a motor vehicle owned by the certificated carrier or may own the motor vehicle and lease it to the certificated carrier, who may release the vehicle to the independent contractor.    The independent contractor, working with a certificated common carrier or contract carrier, other than a certificated taxi or limousine carrier, may own the motor vehicle and lease it to the certificated carrier.       The lease may require the independent contractor to be instructed in the method of the carrier's operation, and to be familiar with federal, state, and municipal statutes, ordinances, and regulations. The lease may further require the certificated carrier or contract carrier to enforce compliance with such federal, state, and municipal statutes, ordinances, and regulations by the independent contractor. Compliance with the provisions of this paragraph (b) shall not affect the status of the independent contractor as an independent contractor for purposes of this article.    The lease may provide for the transportation services to be accomplished personally by the independent contractor.    The lease may provide for uniformity, on the body of the motor vehicle being used, of color and any written displays.    The lease may provide for periodic driver safety training.    The lease may provide for some control over any assistant working with the independent contractor relating to the enforcement of, and compliance with, federal, state, and municipal statutes, ordinances, and regulations.    The lease may establish a specific number of hours to complete a particular shipment of goods and may provide for the creation of shifts which are primarily created to make available transportation equipment on a basis established to meet public need and necessity, and to provide adequate service to the public at all times.    The lease may provide for certain regulations in the event radio telecommunication procedures are used between the certificated carrier or contract carrier and the driver of the vehicle.    The lease may provide that the independent contractor only work for the certificated carrier or contract carrier as a driver during the time the independent contractor is operating the motor vehicle pursuant to the lease.    The lease may prohibit the independent contractor from individually advertising the services being offered while driving for the certificated carrier or contract carrier pursuant to the terms of the lease.    The lease may provide for the carrier to pay the independent contractor's fees when the carrier accepts charge vouchers for services rendered to customers.       The lease may be terminated by any party, but nothing in this section shall be construed as relieving an independent contractor from the obligation of completing an accepted trip.    The lease need not be for a term certain.    Leases containing provisions pursuant to paragraphs   , (b), (e), (f), (g), (h), and (i) of subsection (1) of this section shall be presumed prima facie evidence of an independent contractor relationship between the parties to the lease. This presumption may be overcome by clear and convincing evidence of an employment relationship between the parties to the lease considering only factors not in the lease. Leases containing the other optional provisions shall not change the characterization of the relationship evidenced by the lease.         Any lease or contract executed pursuant to this section must provide for coverage under workers' compensation or an occupational accident insurance policy that provides similar coverage.  (a.5) If an operator of a commercial vehicle, as defined in section 42-4-235 (1)(a)(I) (B), obtains similar coverage pursuant to this subsection (5), then the operator:   Is excluded from the definition of employee for purposes of section 8-40-202 (2);    Shall notify the division of workers' compensation in the department of labor and employment of the election, in a manner determined by the director of the division of workers' compensation by rule; and    Shall, along with the motor carrier and contract carrier, provide proof of the similar coverage upon request to interested parties, including the carrier's workers' compensation insurance provider, the division of workers' compensation, and the division of insurance.       For purposes of this subsection (5), “similar coverage”:   Means insurance benefits designed for independent contractors and sole proprietors who reject workers' compensation coverage and elect, pursuant to this subsection (5), coverage providing medical, temporary and permanent disability, death and dismemberment, and survivor benefits that are subject to regulation by the division of insurance in the department of regulatory agencies. The specifications of the insurance, including coverages, exclusions, policy limits, and the amount, if any, of any deductibles or copayments, must be filed with the division of insurance. The specifications must meet or exceed standards set by the division of insurance and the standards must specify that the benefits offered by the insurance coverage must be at least comparable to the benefits offered under the workers' compensation system.    For services performed by operators of commercial vehicles, as defined in section 42-4-235 (1)(a)(I)(B), means insurance benefits defined in subsection (5)(b)(I) of this section. The specifications of the insurance, including minimum thresholds for coverage and the amount, if any, of any deductibles or copayments, must meet or exceed the standards set, by rule, by the division of insurance in the department of regulatory agencies.       The lease shall provide for the payment of such coverage by either the lessor or lessee. If the lease provides for the lessee to pay for such coverage, proof of coverage shall be maintained by the lessor for the duration of the lease and the lessor shall not have liability for failure of compliance by the lessee.    Notwithstanding any other law, if an operator of a commercial vehicle, as defined in section 42-4-235 (1)(a)(I)(B), a motor carrier, or a contract carrier obtains similar coverage pursuant to this subsection (5), articles 40 to 47 of title 8 do not apply.    The commissioner of insurance in the division of insurance in the department of regulatory agencies shall promulgate rules establishing the minimum coverages for benefits under an occupational accident policy under this subsection (5).        History. Source: L. 90: Entire article added, p. 1762, § 1, effective June 8. L. 92: (4) amended and (5) added, p. 1800, § 4, effective June 6. L. 2004: (5)(b) amended, p. 906, § 34, effective May 21. L. 2018: (5)(a) and (5)(b) amended and (5)(a.5), (5)(d), and (5)(e) added,(SB 18-178), ch. 203, p. 1317, § 1, effective August 8.    ANNOTATION   The definition of an “independent contractor” under this article was intended to apply to the Workers' Compensation Act. Frank C. Klein & Co. v. Colo. Comp. Ins. Auth., 859 P.2d 323 (Colo. App. 1993); USF Distribution Servs., Inc. v. Indus. Claim Appeals Office, 111 P.3d 529 (Colo. App. 2004).   Presumption of independent contractor status overcome pursuant to subsection (4). Frank C. Klein & Co. v. Colo. Comp. Ins. Auth., 859 P.2d 323 (Colo. App. 1993); USF Distribution Servs., Inc. v. Indus. Claim Appeals Office, 111 P.3d 529 (Colo. App. 2004).   Claimant could establish his or her status as an “employee” for workers' compensation purposes either by overcoming the presumption established by subsection (4) with clear and convincing evidence or by showing that he or she was not offered coverage that satisfied the requirements of subsection (5). USF Distribution Servs., Inc. v. Indus. Claim Appeals Office, 111 P.3d 529 (Colo. App. 2004).   Presumption of an independent contractor relationship could apply to the determination of the status of a worker as employee or independent contractor for unemployment tax liability purposes. If all necessary conditions concerning lease provisions are satisfied, a presumption of an independent contractor relationship can arise under subsection (4) of this section, which would conflict with, and take precedence over, the otherwise applicable two-part statutory test under § 8-70-115 (1)(b) for unemployment tax liability purposes. SZL, Inc. v. Indus. Claim Appeals Office, 254 P.3d 1180 (Colo. App. 2011).   “Similar coverage” construed. The coverage required by subsection (5)(b) must not contain benefit caps or time limits more restrictive than those in a policy of workers' compensation insurance complying with the Workers' Compensation Act. Moreover, the lease agreement must do more than simply inform the driver of his or her responsibility to obtain such coverage; it must actually include the coverage. USF Distribution Servs., Inc. v. Indus. Claim Appeals Office, 111 P.3d 529 (Colo. App. 2004).