Gov. Jared Polis announced Monday that state employees will be eligible for two weeks of paid family and medical leave, beginning January 2021.
“Paid Leave will now be a reality for state employees, many of whom have worked day and night during this past year to ensure that we can save the lives of Coloradans and come out stronger from this public health crisis,” Polis said in a statement announcing the decision.
Whether he has the authority is still a big question mark, even with voters approving a paid family and medical leave program that doesn’t begin until 2024.
State law [CRS 24-50-104 (1)(g)] states "the general assembly shall approve any changes to leave benefits granted by statute before such changes are implemented. The state personnel director shall prescribe by procedure any nonstatutory benefits."
Last January, the Joint Budget Committee unanimously rejected a similar attempt by Polis in his budget request for the 2020-21 year. The cost was estimated at $10 million, and that was for an eight-week program.
An analysis by a JBC staffer at the time pointed out that there was no statutory authority for that benefit. An accompanying opinion from Legislative Legal Services noted that the executive director of the Department of Personnel and Administration could set up such a program so long as it was a prevailing practice nationwide, but the JBC analysis said paid leave was not a prevailing practice.
That differed from an opinion by the Attorney General, which said "we believe that, should the Personnel Director determine that paid parental leave is 'typically consistent with prevailing practices' for determing [sic] total compensation,' she is empowered to adopt a paid parental leave benefit for employees in the state personnel system."
Last January, only 13 states plus Washington, D.C., and Puerto Rico offered paid leave. Two more states have signed on since then, including Colorado, as a result of the passage of Prop 118.
According to the Polis statement, the funding source for the program for 2021 is unexpended dollars in the state’s health, life and dental fund, used to pay for those benefits for state employees. The fund has extra dollars because of less medical utilization by state employees, the Polis statement said.
According to Polis spokeswoman Elizabeth Kosar, the “only cost to the State will be to backfill positions that cannot be vacant for the duration of the two-week benefit. DPA estimates the total fund expense to backfill these employees will be $2.5 million.”
Polis said that in future years, the administration and Colorado Wins, the state employees union, “may jointly pursue resources from the General Assembly to pay for the program as currently envisioned, or in a modified form.”
That could be tricky. JBC members interviewed recently by Colorado Politics have been adamant about not creating new programs in the 2021 session, pointing out that available dollars are largely one-time only. Any program requiring outyear funding would be a hard sell.
However, JBC Chair Sen. Dominick Moreno, a Commerce City Democrat, endorsed the governor’s plan in the statement Monday. “I am excited the state is able to provide this important benefit to our hardworking state employees for the next calendar year,” Moreno said. “I appreciate that the administration and Colorado WINS consulted with us on extending this benefit to Colorado state workers.”
But Polis hasn’t asked the JBC for the spending authority to implement the program, and Moreno told Colorado Politics on Monday that the JBC has not discussed paid leave as a benefit for state employees. The JBC held hearings on state employee benefits and compensation on Dec. 7 and that issue did not come up.
Kosar also said the benefit will not require an executive order as “paid parental leave is not one of the enumerated types of leave set forth in the State Personnel System Act, and therefore it is left to the Personnel Director.”
Moreno acknowledged that Polis’ decision means state employees will get access to paid leave three years before employees in local governments, as well as those in the private sector, will have that access.
"Voters have endorsed the idea of providing paid leave," he added, but also said the statutory authority question is not “completely settled." He also doubts the legislature’s attorneys are likely to change their opinion from what they wrote last January.
Moreno explained that the paid leave authorized by Polis is more or less a temporary benefit until the general benefit kicks in for all workers in 2024.
He also said the governor is just redirecting resources, not an uncommon practice, especially during the pandemic.
However, when resources have been redirected from one place to another, it’s from one program that is statutorily authorized to another that is also already statutorily authorized. While Proposition 118 became law upon passage, the program itself does not yet exist. There has been no rulemaking tied to Proposition 118, which is the first step in putting a new program in place within state law.
“We’ll have to have the conversation on whether there’s a budget request and on statutory authorization," Moreno added. As to the statements that new programs will be tough to approve in 2021, Moreno said, “I still hold that ongoing programs will be an issue.”