2020 Brings More Paid Medical and Family Leave Expansions

In this month’s election, Colorado voters passed Proposition 118, approving the Paid Medical and Family Leave Initiative (PMFLI). The following article discusses Colorado’s PMFLI and identifies additional states following this trend.

As of January 1, 2024, certain Colorado employees will be entitled to take 12 weeks of paid family and medical leave and an additional four weeks of paid leave for pregnancy or childbirth complications. Employees may receive up to $1,100 in paid leave each week. Leave can be taken continuously or intermittently.

Covered Employers

Employers with at least 10 employees must provide paid leave under the PMFLI, while local government and employers with fewer than 10 employees will be exempt; though employees of these smaller employers and self-employed individuals may choose to opt into the program for an initial period of at least three years by filing a notice of election and paying 50% of the required wage-tax premium. Employers that already provide paid family and medical leave can opt out of the statewide program only if their private program meets requirements established by the Division of Family and Medical Leave Insurance, a new body enacted by the initiative within the Colorado Department of Labor and Employment.

Employee Eligibility

All employees of covered employers who have earned at least $2,500 in wages taxed for the PMFLI premiums are eligible for paid leave benefits, provided they have a qualifying reason for taking leave.

Reasons for Leave

Eligible employees may take leave and receive PMFLI benefits for the following reasons:

  1. The employee has a serious health condition (e.g., injury, pregnancy, recovery from childbirth, in patient mental health conditions);
  2. The employee needs to care for a family member with a serious health condition;
  3. The employee needs to care for a new child during the first year after the birth, adoption, or foster placement of the child;
  4. The employee qualifies for exigency leave (e.g., active-duty military service); and
  5. The employee needs safe leave when the employee or the employee’s family member is a victim of domestic violence, stalking, or sexual abuse.

Covered family members under the program include the employee’s child, parent, stepparent, spouse, domestic partner, grandparent, grandchild, sibling, or any individual with whom the employee has a significant personal bond that is like a family relationship.  Note that this definition of covered family members is broader than the comparable definition under the federal Family and Medical Leave Act.

Job Protection & Other Leave

Employees may not be terminated while on paid family and medical leave if they have been employed for at least 180 days. In addition, upon returning from leave employees must be restored to an equivalent position. Employers may require that leave taken under the PMFLI run concurrently with leave taken under the Family and Medical Leave Act.

Additionally, an employer may not require employees to exhaust accrued vacation leave, sick leave, or other paid time off (PTO) before or while receiving PMFLI benefits but may agree to allow the employee to use such accrued time while receiving PMFLI benefits, provided that the aggregate amount does not exceed the average weekly wage. An employer also may require that PMFLI leave be taken concurrently with other leave provided under the employer’s disability leave policies, so long as the employer provides written notice of this requirement.

Who Pays?

Beginning on January 1, 2023, employers must fund the PMFLI through a 0.9% tax on an employee’s annual pay, but employers may deduct up to 50% of the premium from the employee’s wages.

A Growing Trend

Massachusetts is also implementing mandatory paid family and medical leave for employees beginning on January 1, 2021 for most benefits and July 1, 2021 for family caregiving benefits. Likewise, employees in Connecticut may begin collecting benefits under its similar law between January 1 and February 1, 2022. Oregonians may begin collecting benefits on January 1, 2023.

Other states with mandatory paid family and medical leave laws currently in effect include California, D.C., Hawaii, New Jersey, New York, Rhode Island, and Washington.

The Bottom Line

This year has been full of expansions in both paid and unpaid family and medical leave. Employers can expect the trend to continue to grow and should be sure to update policies and enroll in state-sponsored programs as needed to comply with the paid leave laws going into effect at the top of next year. And Colorado employers will need to decide whether to establish a self-insured private plan or collect and remit contributions allowing employees to participate in the state-administered plan.