The Colorado Senate’s Business, Labor and Technology Committee passed a controversial bill for paid family and medical leave, known as the FAMLI Act, last Wednesday. It marked Sen. Faith Winter’s fourth attempt to pass such a bill and comes during a year when dozens of other states have introduced measures of their own for paid family and medical leave.
The committee held the hearing on its scheduled date despite anger from some press and Republicans over the decision to proceed during the blizzard that closed roads and rendered travel dangerous, making it unviable for many stakeholders and press to attend in person.
Senate Bill 188 creates a partial wage-replacement insurance program toward which employers and employees each contribute half of the premium costs based on the state’s average weekly wage.
Employees would be guaranteed up to 12 weeks of paid family and medical leave as well as job protection during the leave. In addition to serious health conditions and pregnancy, covered leave situations also include time off for addressing sexual and domestic violence. The bill includes an allowance for an additional four weeks of leave for pregnancy-related complications.
“The benefits of this program are a win-win situation,” Winter said. She and other advocates of the bill say in addition to the security it provides to employees, it will benefit employers in helping them recruit and retain employees.
But the praises for the upsides of paid family and medical leave haven’t won over all employers.
Senate Bill 188’s components would apply to all employers regardless of size and also does not include any carve-outs for employers to administer their own paid leave programs. It’s this broad-sweeping approach that’s causing heartburn among some business owners and organizations.
Sherman & Howard member Brooke Colaizzi said small employers will have an especially steep curve to implement paid leave because of the cost and the fact that the federal Family and Medical Leave Act doesn’t apply to those with fewer than 50 employees. But even bigger employers familiar with federal leave requirements will have a learning curve because SB 188’s components don’t have a lot of overlap with the FMLA.
“Even for large employers who are used to the FMLA, they’re suddenly hit with a new system that overlaps very incompletely with the FMLA,” she said. “And they’re going to have to learn how to integrate two sets of leave requirements, neither of which will cancel the other out.” She added the wide differences between Colorado’s bill and the FMLA could create both state and federal leave entitlements for employees.
The National Federation of Independent Business is one organization opposing SB 188. NFIB Colorado’s director, Tony Gagliardi, said in a news release the one-size-fits-all approach the bill takes is too burdensome on small business owners.
“What our members oppose is a government mandate that assumes every business of any type or size can afford to offer the same benefits as large companies offer their employees,” he stated in the release. “Small-business employers are not equipped to have an employee gone for up to 12 weeks and be required to hold the position open, which SB 188 would force them to do.” Also onerous, he said, is the requirement for small employers to pay 50 percent of the premium for each employee, as well as the employee’s right to pursue a civil action against their employer for not complying with the law.
The Senate committee’s two Republican members, both small business owners themselves, voted against SB 188. Sens. Kevin Priola and Jack Tate echoed the frustration with the one-size-fits-all approach as a major pain point.
But Winter previously told Law Week she believes including carve-outs in the bill would create too much confusion. Colaizzi said multi-state employers have to comply with separate leave laws that each state they operate in may have, which also may not have a lot in common with one another.
SB 188 defines “family member” broadly. Under the measure, the definition includes “a covered individual’s immediate family member … a covered individual’s domestic partner … and any other individual with whom the covered individual has a significant personal bond that is like a family relationship, regardless of biological or legal relationship.”
“It’s very hard to see how … they’re going to rein that in and keep those situations to non-family relationships that truly are of such a close nature that they mirror a family, which I think is where the definition is trying to go,” Colaizzi said. “But, basically, it’s broad enough that people could be taking leave for friends and potentially even acquaintances without some good guidance on how to manage that.”
She said addressing unintended consequences of the legislation would take significant amendments.
The Colorado Department of Labor and Employment could issue guidance on the law, but Colaizzi said because SB 188 creates a new division to administer the leave program, it’s unlikely the division would be prepared right away to issue meaningful regulations and guidance.
But Sen. Angela Williams, SB 188’s other prime sponsor, is also a former small business owner and said she believes the bill’s stakeholder process addressed the concerns she heard from constituents.
She said while she understood Priola and Tate’s concerns, SB 188 is intended for employees whose positions don’t include benefits such as paid time off.
“I think the family [and] medical leave insurance act that we just heard will help close the gap for those who have a loss or a life event that they need to take care of a loved one or themselves.”
— Julia Cardi