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Posted: March 06, 2013

State leave expansion bill has problems

And they can't be amended away

the Colorado Association of Commerce & Industry

The Colorado House Health, Insurance and Environment Committee amended and then approved HB-1222, which would expand the eligibility of those with a "serious health condition" for whom an employee could take leave from work to care for under the 1994 Federal Family Medical Leave Act (FMLA).

The amended bill, however, still contains a major problem, and the problem cannot be amended away. CACI, therefore, remains opposed to the legislation.

The bill's fiscal note states that FMLA leave is unpaid, job-protected leave, and a worker can take up to 12 weeks in a year for specific family and medical reasons.  The employer continues to provide group health insurance coverage under the same terms and conditions as if the worker had not taken the leave.  FMLA leave is for a worker to take care only of an immediate family member.  Employers have the ability, however, to expand the leave at their own discretion.

The Committee approved the bill on a partisan, 6-5 vote.  The next stop for the bill is Second Reading on the House Floor.

The House sponsor is Representative Cherilyn Peniston (D-Westminster) and the Senate sponsor is Senator Jessie Ulibarri (D-Commerce City).

CACI had worked with the sponsors about concerns over the introduced bill.  The Committee adopted three amendments, which CACI had suggested, on a partisan, 6-5 vote.

HB-1222 creates a Colorado-specific expansion of leave under the FMLA, which would allow a worker to take up to 12 weeks leave in a year to care for an individual if that person:

  • Is the worker's partner in a civil union (assuming the civil-unions bill, SB-11, becomes law).
  • Is the "parent, child, grandparent, grandchild, sibling, first cousin, aunt, uncle, niece, or nephew of the employee or of the employee's spouse or partner in a civil union . . ."
  • Has entered into a "designated beneficiary agreement" as defined by state law with the worker.
  • Is the employee's "domestic partner" and has registered the partnership with a city or the State or is recognized by the employer as the worker's domestic partner. (Apparently, only two cities in Colorado have domestic partner registries: Denver and Boulder.)

Here's the problem that concerns CACI.  If an employer were to deny leave to a worker under the FMLA because he or she had already taken 12 weeks under the state law as described in HB-1222, the U.S. Department of Labor would not regard the state time as counting toward their 12 weeks.

For example, a worker takes 12 weeks under HB-1222, should it become law, to care for his or her domestic partner.  Then a week later, the worker asks for another 12 weeks to care for a parent (or any other family member defined under the FMLA).  If the employer then denied the leave on the basis that the employee had already taken 12 weeks for the domestic partner, then that would be a violation by the employer of the FMLA.

Clearly, there is no way to fix this issue in HB-1222.  The only way to fix this dilemma is for the Federal Government to expand the definition of who is covered under FMLA.

HB-1222 would apply to Colorado private employers with 50 or more workers, all government agencies and elementary and secondary schools.

The bill contains a private right-of-action provision, which would allow a worker, should he or she be denied leave by an employer to take care of family members as defined by HB-1222, to go to state court to recover damages or equitable relief from the employer.  A similar provision already exists under FMLA for workers who want to take their claims to Federal court.

The fiscal note does not estimate the cost of the bill on private-sector employers.

Established in 1965, the Colorado Association of Commerce and Industry is the statewide chamber of commerce. With almost 500 members statewide, employing nearly 200,000 workers, CACI's mission is to champion a healthy business environment. CACI's members include individual businesses, about 30 trade associations, about 40 local chambers of commerce and several local economic development organizations. CACI's lobbying team works with state lawmakers to promote business-friendly laws, and has a successful track record of securing legislation that benefits all Colorado businesses. CACI is a non-profit organization funded solely by its members. Learn more at www.cochamber.com.

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