Colo. Rev. Stat. » Title 8
Colorado Revised Statutes

Colo. Rev. Stat. § 8-40-301 (2026)

Scope of term "employee" - definition

✓ current as of July 2026
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(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) 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.

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.

Editor's note: This section is similar to former § 8-41-106 as it existed prior to 1990.

Notes of Decisions
Cited in 13 cases, 1991–2004 · leading case: Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994).
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Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994). · cites it 13× “Laws 409, 410 (now appearing at § 8-40-301(4), 3B C.R.S. (1993 Supp.)). We first consider whether Apostolou was an “employee” of Highlands under the basic definition of that term.”
USF Distrib. Servs., Inc. v. Indus. Claim Appeals Off. of Colorado, 111 P.3d 529 (Colo. Ct. App. 2004). · cites it 17× “2004, nothing within that statutory section is to conflict with § 8-40-301 or otherwise relieves any obligation imposed therein.”
Karlin v. Conard, 876 P.2d 64 (Colo. Ct. App. 1993). · cites it 8× “At the summary judgment hearing, the parties disputed whether a 1989 legislative amendment to the controlling statute, § 8-40-301(1), C.R.S. (1993 Cum.Supp.), had nullified the test established in prior decisional law for determining when recreational activities are within the…”
Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357 (Colo. Ct. App. 1992). · cites it 11× “Section 8-40-301(4), C.R.S. (1992 Cum. Supp.”
Gateley's Case, 613 N.E.2d 918 (Mass. 1993). “1993) (voluntary off-duty recreational activities are excluded from coverage unless there is reasonable expectancy of or requirement of participation); Colo. Rev. Stat. § 8-40-301 (1990 & Supp.”
Kinder v. Indus. Claim Appeals Off. of Colorado, 976 P.2d 295 (Colo. Ct. App. 1998). · cites it 5× “Section 8-40-301, C.R.S.1997, which sets forth the scope of the term “employee,” excludes certain classes of persons from the definition of “employee,” and inmates are specifically listed therein.”
Scott v. Matlack, Inc., 1 P.3d 185 (Colo. Ct. App. 2000). · cites it 3× “However, § 8-40-301(5), C.R.S.1998, provides that the term "employee" excludes any person working as a driver under a lease agreement pursuant to § 40-11.”
Dunavin v. Monarch Rec. Corp., 812 P.2d 719 (Colo. Ct. App. 1991). · cites it 2× “Section 8-41-106(2), in effect at the time of the injury, cf § 8-40-301(1), C.R.S. (1990 Cum.Supp.), provided that the term: “ ‘employee’ excludes any person .”
FFE Transp. Servs., Inc. v. Indus. Claim Appeals Off., 93 P.3d 630 (Colo. Ct. App. 2004). · cites it 18× “under a lease agreement” within the meaning of § 8-40-301(5), C.R.S.2003, and, therefore, was FFE’s statutory employee.”
Frank C. Klein & Co. v. Colorado Comp. Ins. Auth., 859 P.2d 323 (Colo. Ct. App. 1993). “224, § 8-40-301 at 1798. At the hearings concerning the 1992 amendments, the original Senate sponsor of § 40-11.”
Alaplex Transp., Inc. v. Rossen, 836 So. 2d 901 (Ala. Civ. App. 2002). “Our research has found that a number of states, including Colorado, Georgia, Iowa, Oklahoma, and Tennessee, provide for a general no-liability rule with respect to workers' compensation claims of owner-operators or leased operators against contracting common carriers.”
Price v. Indus. Claim Appeals Off., 908 P.2d 136 (Colo. Ct. App. 1995). · cites it 2× “In reaching this conclusion, the Panel considered the definition of an “employee” when engaged in recreational activity under § 8-40-301(1), C.R.S. (1994 Cum.Supp.). However, the Panel correctly observed that the statutory definition is not dispositive of whether an injury arose…”
Show all 13 citing cases →
— Colo. Rev. Stat. § 8-40-301(1) — 3 cases
Karlin v. Conard, 876 P.2d 64 (Colo. Ct. App. 1993). “At the summary judgment hearing, the parties disputed whether a 1989 legislative amendment to the controlling statute, § 8-40-301(1), C.R.S. (1993 Cum.Supp.), had nullified the test established in prior decisional law for determining when recreational activities are within the…”
Dunavin v. Monarch Rec. Corp., 812 P.2d 719 (Colo. Ct. App. 1991). “Section 8-41-106(2), in effect at the time of the injury, cf § 8-40-301(1), C.R.S. (1990 Cum.Supp.), provided that the term: “ ‘employee’ excludes any person .”
Price v. Indus. Claim Appeals Off., 908 P.2d 136 (Colo. Ct. App. 1995). “In reaching this conclusion, the Panel considered the definition of an “employee” when engaged in recreational activity under § 8-40-301(1), C.R.S. (1994 Cum.Supp.). However, the Panel correctly observed that the statutory definition is not dispositive of whether an injury arose…”
— Colo. Rev. Stat. § 8-40-301(3) — 2 cases
Kinder v. Indus. Claim Appeals Off. of Colorado, 976 P.2d 295 (Colo. Ct. App. 1998). “Section 8-40-301, C.R.S.1997, which sets forth the scope of the term “employee,” excludes certain classes of persons from the definition of “employee,” and inmates are specifically listed therein.”
Kinder v. Indus. Claim Appeals Off., 976 P.2d 295 (Colo. Ct. App. 1998).
— Colo. Rev. Stat. § 8-40-301(4) — 2 cases
Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994). “Laws 409, 410 (now appearing at § 8-40-301(4), 3B C.R.S. (1993 Supp.)). We first consider whether Apostolou was an “employee” of Highlands under the basic definition of that term.”
Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357 (Colo. Ct. App. 1992). “Section 8-40-301(4), C.R.S. (1992 Cum. Supp.”
— Colo. Rev. Stat. § 8-40-301(5) — 3 cases
USF Distrib. Servs., Inc. v. Indus. Claim Appeals Off. of Colorado, 111 P.3d 529 (Colo. Ct. App. 2004). “2004, nothing within that statutory section is to conflict with § 8-40-301 or otherwise relieves any obligation imposed therein.”
Scott v. Matlack, Inc., 1 P.3d 185 (Colo. Ct. App. 2000). “However, § 8-40-301(5), C.R.S.1998, provides that the term "employee" excludes any person working as a driver under a lease agreement pursuant to § 40-11.”
FFE Transp. Servs., Inc. v. Indus. Claim Appeals Off., 93 P.3d 630 (Colo. Ct. App. 2004). “under a lease agreement” within the meaning of § 8-40-301(5), C.R.S.2003, and, therefore, was FFE’s statutory employee.”
— Colo. Rev. Stat. § 8-40-301(6) — 2 cases
USF Distrib. Servs., Inc. v. Indus. Claim Appeals Off. of Colorado, 111 P.3d 529 (Colo. Ct. App. 2004). “2004, nothing within that statutory section is to conflict with § 8-40-301 or otherwise relieves any obligation imposed therein.”
FFE Transp. Servs., Inc. v. Indus. Claim Appeals Off., 93 P.3d 630 (Colo. Ct. App. 2004). “under a lease agreement” within the meaning of § 8-40-301(5), C.R.S.2003, and, therefore, was FFE’s statutory employee.”
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