COVID-19 Legal FAQ Update – Colorado Proposition 118

Memorandum

From:  CEA Legal Center

Date: December 18, 2020

RE: COVID-19 Legal FAQ Update – Colorado Proposition 118


Disclaimer: This publication is for informational purposes only and is not intended as a substitute for specific legal or other professional advice. If you have specific questions about your legal or contractual rights, contact your Colorado Education Association union representative or local leader. This guidance will be updated periodically based on new information and guidance, so please refer back to this link for the most current information.

Question: In the November election, Colorado Proposition 118, regarding family and medical leave, was approved by the voters. What effects will this proposition have on public school district employees in Colorado?

Answer: Proposition 118 could increase the amount of paid leave available to school employees, as well as the number of reasons for which they are entitled to use such leave. However, Proposition 118 specifically allows a “local government,” defined to include a school district, to decline participation in the family and medical leave program created by this proposition. If a school district declines participation, it must notify its employees and advise them that they can individually elect coverage under this program. Then, any individual employees who are eligible for coverage under the proposition can obtain coverage by submitting an election document to a designated state agency. Employees are eligible for coverage if they have worked for the employer for at least 180 days and they have earned at least $2500 in the past year.

If a school district opts to participate, or eligible individual employees elect coverage, under in this program:

(1) the employees are entitled to up to 12 weeks of partially-paid leave per year, plus up to four additional weeks of partially-paid leave per year for serious health conditions related to pregnancy or childbirth complications;

(2) the employees are entitled to use the 12 weeks of leave for any of the following reasons (which are broader than the reasons in the federal Family and Medical Leave Act):

  • caring for one’s own serious health conditions;
  • caring for a new child during the first year after birth, adoption, or foster care placement;
  • caring for a family member with a serious health condition;
  • needs related to a family member being on active duty military service or subject to an impending call to active duty military service;
  • needs related to the employee or a family member being the victim of domestic violence, stalking or sexual assault or abuse;

(3) the employees are entitled to partial pay for this leave in the amount of: 90% of the employee’s average weekly wage for the portion of his/her wages that are less than or equal to 50 % of the state average weekly wage; and 50% of the employee’s average weekly wage for the portion of his/her wages that exceed 50% of the state average weekly wage;

(4) the employer must maintain the employees’ health care benefits during leave on the same terms and conditions as if the employees were working;

(5) the employees are entitled, upon their return from leave, to be restored to the position held prior to the leave or to an equivalent position;

(6) the employer may not retaliate or discriminate against employees for exercising their rights under this proposition.

It is important to remember that the benefits provided by Proposition 118 do not go into effect until 2024 and a number of crucial actions will or could be taken before that time. First, the director of a newly-created state agency, the Division of Family and Medical Leave Insurance, is required to issue rules for implementation of the proposition, including rules pertaining to the right of local governments (including school districts) to decline participation in the program. Second, school districts will be deciding whether to decline participation in the program, a matter that local associations should demand to bargain. Third, because the proposition amends state statute and not the state constitution, the Colorado legislature can act to amend or even repeal the proposition before it goes into effect.