Colorado voters approve paid family and medical leave program

Voters in Colorado have approved a ballot measure that will create a paid family and medical leave (PFML) program funded by employers and employees.

Covered Employees:

To be eligible for wage-replacement benefits under the PFML program, employees generally must earn at least $2,500 in wages subject to premiums during the base period, follow certain administrative rules, and submit an application for benefits.

Contributions:

Contributions to the program will start in 2023. In the program's first two years, the premium rate is set at 0.90 percent of wages per employee, split evenly between employer and employee.

Exceptions:

Employers with nine or fewer employees aren't required to pay the employer portion of the premium, but they must withhold and forward an employee's portion of the premium.

Additionally, employers that already have a state-approved private family and medical leave plan that meets the law's requirements aren't required to pay premiums.

Use of Leave:

Beginning January 1, 2024, eligible employees may receive up to 12 weeks of leave and wage-replacement benefits per year for the following purposes:

• To care for their own serious health condition;
• To care for a new child during the first year after the birth, adoption, or placement through foster care of that child;
• To care for a family member with a serious health condition;
• Because of any qualifying exigency arising out of the fact that a family member is on active duty (or has been notified of an impending call or order to active duty) in the armed forces; and
• When the employee or their family member is a victim of domestic violence, stalking, or sexual assault.

Note: Employees with a serious health condition related to pregnancy or childbirth complications may take up to an additional four weeks (16 weeks in total).

The measure defines "family member" as:

• The employee's child, spouse or domestic partner; parent, sibling, grandparent, or grandchild;
• The child, parent, sibling, grandparent, or grandchild of the employee's spouse or domestic partner;
• Any individual with whom the employee has a significant personal bond that is like a family relationship.

Employees must make a reasonable effort to schedule the leave to avoid unduly disrupting the operations of the employer.

Intermittent Leave:

Employees may take PFML intermittently, but wage-replacement benefits won't be payable from the state until the employee accumulates at least eight hours of benefits. Employees may take PFML in one-hour increments or in increments the employer typically uses to measure leave if smaller (e.g. 30 minutes).

Employee Notice:

When the need for leave is foreseeable, employees must notify their employer at least 30 days in advance. If the need for leave isn't foreseeable, employees must provide as much leave as is practical.

Employer Notice:

Employers must:

• Post a notice on the law in the workplace,
• Notify employees about the law in writing at the time of hire and when they learn that an employee is experiencing an event that would trigger such leave.

The newly created Division of Family of and Medical Leave Insurance will create a notice that employers can use for this purpose.

Job Reinstatement and Other Protections:

Employees who have been employed for at least 180 days with their current employer prior to taking leave are entitled to return to the same position or an equivalent position with equivalent seniority, status, employment benefits, and pay.

Eligible employees are entitled to maintain their health benefits during their leave as long as they continue to pay their share of the costs.

Employers are prohibited from taking adverse action against an employee for requesting or using the paid leave.

Relationship with Federal FMLA and Other Leave Policies:

When an employee is eligible for unpaid leave under the federal Family and Medical Leave Act (FMLA) and the employee's leave qualifies for FMLA leave, the time off counts against the employee's entitlement under both FMLA and PFML. Additionally, employers may require employees to use PFML concurrently with leave under a disability policy, provided they give employees written notice of this requirement.

Employers are prohibited from requiring employees to exhaust vacation, sick leave, or other paid time off before or while using PFML. However, employers and employees may mutually agree to supplement PFML benefits with other paid leave, unless the aggregate amount would exceed the employee's average weekly wage.

Compliance Recommendations: