Paid Medical and Family Leave on the Ballot in November

September 29, 2020

By: Colin A. Walker

Proposition 118, the “Paid Medical and Family Leave Initiative,” will be on the ballot this November. It 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 bill would be similar to the federal FMLA, but not identical.  

Similar laws have been proposed in the Colorado Legislature in recent years, but have not passed. In 2019, the Democrats gained control of both houses of the Legislature and a Democratic Governor was elected. Democratic leadership in the Legislature and Governor Polis both vowed to pass paid family and medical leave legislation in 2019 and the “FAMLI” bill was introduced. FAMLI failed to pass and, instead, a study was commissioned.  

At the beginning of the 2020 Legislative session, proponents again vowed to pass paid family and medical leave legislation, but, possibly due to a breakdown of the coalition supporting the bill and the pandemic, a bill was not introduced in the truncated 2020 legislative session. However, the 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 and up to 80 hours per year for issues related to a “public health emergency.” Frustrated by FAMLI’s failure to pass and believing that HFWA did not go far enough, certain supporters of paid leave legislation decided to propose it as a ballot initiative, Proposition 118.   

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.  

Others have questioned whether a ballot initiative is the right way to enact such complicated and important legislation and argued that legislation of this sort should be carefully studied by elected representatives who have more time and resources to consider it, can debate it in legislative committees, and can propose and vote on amendments. Others have suggested adopting provisions that make requirements more clear and understandable, and less burdensome on small employers, including:

  • An exemption for very small employers with less than 15 employees, who cannot realistically be expected to comply with a complicated regulatory scheme;
  • Clear definitions for key terms such as the definition of “family,” which currently includes “any individual with whom the person has a significant personal bond that is like a family relationship”;
  • Language which tracks the federal FMLA, with which most HR practitioners are familiar and which has been discussed in case law and scholarly materials. 

All business owners, executives, managers, HR professionals, and others who deal with employment issues—and the voting public—should carefully consider how Proposition 118 would impact them and their businesses before the election.  

More information on that event can be found here.