By Colin A. Walker, Fairfield and Woods, P.C.
“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 developments.
Previously, 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. On November 3, it was approved by Colorado voters. This is going to be a big change for all employers and employees in Colorado and the next steps will be to understand how to administer this new change.
Here are some of the key provisions, including those that differ from current FMLA requirements:
- 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 a broad definition 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 present administrative changes that will require thorough review from HR practitioners, business owners, and employment attorneys. Failure in compliance assumes that litigation is probable 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. HR practitioners are encouraged to review their policies and practices in light of this new law and obtain advice from employment counsel with regard to their specific business needs.
Questions? Contact COSHRM’s Legislative Director, Colin Walker.