Newsflash: State Paid Leave Legislation
September 29, 2020
By: Colin A. Walker
From time-to-time, I am going to deviate from issues which relate specifically to C-Level Executives and discuss employment law issues which apply to all employees (C-Level Executives, after all, are employees and are subject to the laws which govern the rank and file). This is particularly important with new and emerging employment laws.
There has been a trend in recent years for states to enact paid family and medical leave legislation which requires employers within the state to provide a certain amount of leave for specified family and medical issues. In some respects, these laws are similar to the federal Family Medical Leave Act (“FMLA”). In other respects, they differ. In particular, unlike the FMLA, most of these laws apply to employers which employ fewer than 50 employees and provide for paid leave. As of the date of this post, the following had enacted such legislation: California, the District of Columbia, Hawaii, Maine, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington.
In Colorado, similar bills have been introduced, but failed to pass. In 2020, the Colorado Legislature did pass the Healthy Families and Workplaces Act (“HFWA”), which will soon require employers, regardless of size, to provide up to 48 hours of paid family and medical leave per year and up to 80 hours for issues related to a “public health emergency.” Some, however, felt that the HFWA did not go far enough and have proposed a more robust law as a ballot initiative, Proposition 118, the “Paid Medical and Family Leave Initiative.” It will be on the ballot this November.
Proposition 118 would enact a statute requiring every private employer in Colorado, regardless of the number of employees, to allow eligible employees to take up to 12 weeks of leave in connection with a serious health condition or that of a family member, birth or adoption, or in connection with certain military service. For pregnancy-related issues, employees would be entitled to take an additional four weeks of paid leave. It does not apply to federal employees and local governments can opt out. The new law would also establish a fund, based on a premium paid by employers and employees, for wage replacement for those taking leave. The program would be administered by a new division of the Colorado Department of Labor and Employment. Leave under this law would be similar to the federal FMLA, but not identical. There are robust penalties for violation of the law, including a civil action by aggrieved employees for front pay, back pay, reinstatement, and attorneys’ fees.
Opponents have argued that Proposition 118 would be unduly burdensome on small businesses and larger employers with operations across the country in terms of compliance, operations, and financially. In addition, they are concerned that inconsistencies between this law and the FMLA would complicate compliance. The language of the bill is also vague in a number of respects, which could lead to confusion, liability for well-intentioned employers who do not understand its requirements, and litigation. For example, the definition of “family,” which includes “any individual with whom the person has a significant personal bond that is like a family relationship,” is unclear and could result in misunderstandings and litigation.
It is unclear whether Proposition 118 will pass this election. If it does not, it is likely that a similar bill will be introduced in the 2021 Colorado legislative session. Similar bills can be expected in other states.
C-Level executives working in states with such laws would be affected in two ways. First, as employees, they would be able to avail themselves of the benefits of these laws. Second, those with responsibilities for human resources or overall management of an enterprise and its employees would have to ensure compliance with them. As discussed above, this will be no easy task. C-Level executives with responsibility over these matters should employ skilled HR professionals and consult competent employment counsel.