Back to the Drawing Board With Paid Leave

Bill’s changes include major concessions to business community, but measure still unlikely to please every employer

In a lot of ways, the bill for paid leave that passed out of Colorado’s Senate Finance Committee on Tuesday evening doesn’t much resemble the version of the bill first introduced early in March. The reworked bill includes several compromises to appease a business community angered by what they saw as too rigid of a structure. 

One major concession by Senate Bill 188’s sponsors allows employers to opt out of the state-administered insurance program if they offer their own private plan. Some other significant changes include a shift from employers and employees each paying half the premium costs into the state program to a 40-60% split instead, and a carve-out for local governments to opt out, with their employees having the ability to opt in and pay their share of the premium.

Sen. Angela Williams, a prime sponsor, told Law Week the bill’s significant changes came from listening to feedback from stakeholders. 

“We want to try to make this the best bill possible without compromising our core values,” she said.

But Sen. Faith Winter, the bill’s other prime sponsor, told the committee that shaping the bill to appease members of Colorado’s business community has been something of a moving target.

“Every single time we met a new concern, 10 more requests came in,” she said. “That’s how legislation works and I respect that process, and that’s why we have numerous amendments. So in no way am I saying we have appeased the business community.” Williams said to Law Week that the lingering disagreement at this point among stakeholders is probably due fundamental philosophical disagreements with the idea of paid leave.

Another major change has reduced the maximum leave time from between 12 and 16 weeks to simply 12 weeks. In the original bill, a person could receive up to four weeks for pregnancy-related complications on top of the 12-week cap for general leave. Brooke Colaizzi, a member in Sherman & Howard’s employment law practice, said the simplification is helpful for employers. 

The new version of the bill exempts seasonal workers from the job protection provided by the program. Employers had expressed concern in previous hearings about a requirement to include them. “[The change is] a recognition that practically speaking, it doesn’t really make sense in those scenarios,” Colaizzi said. 

But some of the bill’s other well-meaning adjustments, Colaizzi said, could still cause heartburn for employers.

The committee adopted an amendment to add language that employees who fraudulently claim leave must pay back the benefits they receive, and they also lose job protection. But Colaizzi said for employers who use the state plan, a claim against an employee to recover lost money probably wouldn’t be as straightforward as it sounds. For one thing, she said, the premium amounts paid into the program by the employer won’t match the benefit amounts paid out. And the recovered money would also have to go back into the state fund, not to the employer.

“It’s not quite as clean as it may look,” Colaizzi said. “I think the real piece of this is the job protection.” She said the ability for an employer to terminate an employee for a fraudulent leave claim would give them a defense against a discrimination claim if an employee said they were terminated for taking leave.

The bill has also added language to its definition of a family member to further clarify who a person can take leave to care for, to include a person that the employee has an “indefinite” relationship with. 

A previous iteration of the bill also added an employee must have an ongoing supportive relationship “of the type traditionally provided by family” with a person they seek to care for such as a physical and emotional relationship. 

Winter said the additional language of an indefinite relationship is intended to narrow the definition of a family member further to mitigate abuse of the leave program. 

She used her sister as an example, who has multiple sclerosis and who Winter said she will likely need to help care for in the next several years.

“We have a financial, emotional and physical care for one another and an indefinite relationship, and my sister would qualify,” she said. “My friend that I have happy hour with next week does not qualify, so we are narrowing this definition.” 

The committee rejected an amendment brought by Sen. Paul Lundeen to align the bill’s definition with how the Family and Medical Leave Act defines a family member, which does not include siblings or adult children.

Colaizzi said it seems the sponsors are making a genuine attempt to address concerns about the ramifications of defining a family member too broadly, but she said from a practical perspective, it will take a lot of work for the state to verify relationships that, unlike marriages or biological relationships,  don’t have a legal status of some kind, and taking an in-depth look at every relationship that’s the subject of a leave claim could result in a big backlog of work for the state, especially given that the state has 180 days to make a decision about a claim, but most leave periods only last for a few weeks. 

She said the biggest overarching issue for employers remains how much the bill still departs from the FMLA, such as the reasons employees can take leave and the definitions of family, because the differences create double obligations for employers to make sure they comply with.

“The extent to which it exceeds the FMLA is still a huge concern.”

— Julia Cardi

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