Paid Family Leave Ballot Initiative Passes in Colorado
November 4, 2020
By: Colin A. Walker
“May you live in interesting times” goes the ancient Chinese curse (actually, it’s British) and we are certainly living in interesting times. While most of our attention is focused on the still undecided Presidential election, there were other important election developments that are confirmed.
On September 29, 2020, I wrote to you about Proposition 118, the “Paid Medical and Family Leave Initiative” in Colorado, which is part of a wave of legislation sweeping the country. Having failed to pass the Colorado Legislature, the sponsors presented it as a ballot initiative this election. Last night it was approved by Colorado voters.This is going to be a big change for all employers and employees in Colorado so we are all (including you C-Level Executives) going to have to learn how to deal with it.
Here are some of the key provisions:
- The law requires 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.
- The definition of “family member" – includes “any other individual with whom the person has a significant personal bond that is like a family relationship.” This is vague and different from the definition of family member under the FMLA.
- “Safe Leave” – employees are entitled to take paid leave related to domestic violence, stalking, and similar issues. This is also not included under the FMLA.
- Leave would be concurrent with FMLA leave in some situations, but not in others, such as with "Safe Leave".
- Employers cannot require employees to use PTO during leave, as they can under the FMLA.
- The law establishes 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.
As you can see, this new law is long and complicated. It’s going to be a real challenge for HR managers and executives with responsibilities relating to employment. Litigation is sure to ensue and there are robust enforcement mechanisms, including a civil action by aggrieved employees for front pay, back pay, reinstatement, and attorneys’ fees. Because of the significant differences between this law and the FMLA, you cannot simply rely on the procedures you have had in place for FMLA compliance. Business leaders and managers should take a hard look at their policies and practices in light of this new law and seek advice from employment counsel.