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by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

December 14, 2020

For several years the Colorado legislature tried without success to pass paid family and medical leave legislation. In 2020 the voters took matters into their own hands and voted in favor of a ballot initiative (Proposition 118) to create a PFML program. PFML geeks may recall that in Massachusetts in 2018 PFML supporters took the same route but in what came to be called The Grand Bargain, the legislature passed a PFML bill to keep voter initiatives off the ballot. This did not occur in Colorado, perhaps because of its short legislative session that ends in mid-May or perhaps because of an inability to get consensus even in the face of a ballot measure. In any event, Colorado PFML is now law and will be a reality soon.

Some interesting features. At Matrix we administer private plans for many state paid family and medical leave programs, and we are working on implementation of others so we’ve seen all kinds of PFML programs. Here are some things we find interesting or encouraging about the Colorado program:

There is no waiting period – benefits are payable from the employee’s first day of covered leave.
There is only one 12-week bucket of leave entitlement for all leave reasons, rather than different buckets for things like the employee’s own serious health condition vs. family leave for bonding or caring for a family member (check out Massachusetts).
The law follows a new trend by providing an additional 4 weeks of leave available to an employee experiencing complications from pregnancy or childbirth.
The definition of “family member” also follows a recent trend of including someone who is not related by blood or marriage but is “like a family member” to the employee.
The statute is blessedly specific on concurrency of an employee’s use of federal FMLA, disability benefits, and paid time off.This prevents stacking of FMLA leave and leave during use of disability benefits (that is, sequential rather than concurrent use).On the other hand, the law preserves the employee’s right to save employer-provided accrued time off for other purposes or choose to use it to top up PFML benefits to the employee’s average weekly wage.

Here are the details we know now, based on the new statute.

Topic	Description	Colorado Revised Statutes
Administration	State plan:Colorado Department of Labor New Division of Family and Medical Leave Insuranceto be created, led by a Director Private plans permitted Must meet or exceed benefits provided under statute and not impose greater employee obligations Insured by an insurer approved by the state Self-funded – requires a bond	§8-13.3-408 §8-13.3-421
Contributions / Premiums	Start:January 1, 2023 Amount: 2023-2024:0.9% of employee’s wages 2025 and after:rate may be adjusted according to a described formula but not to exceed 1.2% of employee’s wages Wages subject to contribution capped at federal SSA limit Employer can require employees to contribute up to ½ of total premium Employers with fewer than 10 employees do not have to contribute the employer’s share of premiums to the state; must still contribute the employees’ share	§8-13.3-416(1) §8-13.3-407
Benefits	Start:January 1, 2024 Amount: 90% of the employee’s average weekly wage (AWW) that is equal to or less than 50% of the state AWW PLUS 50% of the employee’s AWW that is greater than 50% of the state AWW Maximum weekly benefit:90% of state AWW Exception:for benefits beginning before 1/1/2025, the maximum benefit will be $1,100 per week	§8-13.3-416(1) §8-13.3-406
Employee Eligibility	“Covered Individual” means any person who: Earned at least $2500 in wages subject to premiums during the base period OR Elects coverage for a minimum of 3 years (e.g., self-employed, sole proprietor, independent contractor, employees of local governments that have opted out of coverage, etc.) NOTE: We use the term “employee” throughout this article	§8-13.3-403(3) §8-13.3-414
“Base Period”	Base period: first 4 of the last 5 completed calendar quarters immediately preceding the first day of the individual's benefit year Alternative base period:last 4 completed calendar quarters immediately preceding the benefit year NOTE: Benefit year is not defined; probably should refer to Application Year – see below	§8-70-103(1.5) and (2)
Covered Employers	Private employers: With 1 or more employees during 20 weeks in the current or prior calendar year; or Who paid wages of $1,500 or more during any quarter in the prior calendar year The state and political subdivisions The federal government is excluded	§8-13.3-403(8)
Local Government Opt-out	Local governments may opt out of CO PFML coverage “Local government” means any county, city and county, city, or town, school district, special district, authority, or other political subdivision of the state	§8-13.3-422 §29-1-204.5(3)(b)
Total Leave Entitlement	12 weeks in an Application Year Additional 4 weeks for a serious health condition related to pregnancy complications or childbirth complications	§8-13.3-405(1)
Waiting Period	None
Leave Reasons	Employee’s serious health condition Caring for a family member with a serious health condition Bonding with a new child during the first year after birth, adoption, or placement Qualifying military exigency Safe leave (leaves related to the employee or a family member being a victim of domestic violence, stalking or sexual assault or abuse)	§8-13.3-404 §8-13.3-403(16) §8-13.3-404(18)
Covered Relationships	Child of any age* Parent* Spouse Domestic partner Grandparent* Grandchild* Sibling* Like a family member:Any individual with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship NOTE: These relationships include biological, foster, adoptive, step, and in loco parentis* relationships and the same relationships to the employee’s spouse or domestic partner, if applicable	§8-13.3-403(11)
Leave Year Calculation Methods	Application Year: 12-month period beginning on the first day of the calendar week in which an employee files an application for PFML benefits	§8-13.3-403(1)
Leave Increments	1hour OR Smaller increments if consistent with employer’s increments for other employee leave Benefits not payable until employee accumulates at least 8 hours of PFML usage	§8-13.3-405(3)
Employee Documentation	CO PFML Division will develop claims procedures and forms, including Certification from a health care provider for proof of a serious health condition and Documentation of need for safe leave	§8-13.3-416(2)
Employee Notice to Employer	30 days if leave is foreseeable Such notice as is practicable if leave is not foreseeable or if 30 days is not possible	§8-13.3-405(5)
Employee Notices to Employees	CO PFML Division will develop notice materials with details of the CO PFML program for employer use Employers will be required to provide written notice to employees: By posting in the workplace Upon hire Upon learning an employee is experiencing an event that would be covered by CO PFML	§8-13.3-411
Coordination with Other Leaves and Benefits	FMLA:CO PFML runs concurrently with federal FMLA, if applicable STD:Employer may require employee to use STD or similar benefits concurrently with CO PFML Accrued paid time off (PTO) (vacation, sick leave, etc.): Employer cannot require employee to use PTO prior to or while receiving CO PFML benefits Employer and employee may agree that an employee can use PTO while receiving CO PFML benefits, up to employee’s AWW	§8-13.3-410
Job & Benefits Protection	If employee has been employed with current employer for at least 180 days prior to commencement of PFML leave, restoration after leave to same or equivalent position and terms and conditions of employment Continuation of health care benefits during leave	§8-13.3-409
Employer Reimbursement	Employer can receive reimbursement from state program or private plan insurance carrier for advance payments made by employer equal to or greater than CO PFML benefits	§8-13.3-415

Matrix can help! State by state, the number of paid family and medical leave laws keeps growing. You don’t have to go it alone! At Matrix we administer private paid family and/or medical leave and benefits plans in many states, including California, New Jersey, New York, Washington, and the upcoming Massachusetts, Connecticut, and Oregon. If you would like to learn more about paid family and medical leaves and the benefits of having a private or voluntary plan, contact your Reliance Standard or Matrix account manager with questions or send a message to [email protected], and keep watching this space for more information.

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