A New Benefits Baseline: PFML Puts States in Absence & Disability Management Business

Heather Grimshaw

It is increasingly important for employers to participate in policy conversations about state paid family and medical leave implementation to ensure their voices are heard, says Tracy Marshall, BSN, RN, CCM, CDMS, SHRM-SCP, division director, Family and Medical Leave Insurance (FAMLI) division, Colorado Department of Labor and Employment. Listen in for details about FAMLI, the value of more employers engaging in the rule-making process, perspectives shared during an employer roundtable discussion Marshall facilitated during the 2023 DMEC Annual Conference, and more.



DMEC: Welcome to Absence Management Perspectives: A DMEC Podcast. The Disability Management Employer Coalition, or DMEC as we're known by most people, provides focused education, knowledge, and networking opportunities for absence and disability management professionals. DMEC has become a leading voice in the industry and represents more than 18,000 professionals from organizations of all sizes across the United States and Canada. This podcast series will focus on industry perspectives and provide the opportunity to delve more deeply into issues that affect DMEC members and the community as a whole. We're thrilled to have you with us and hope you'll visit us at www.dmec.org to get a full picture of what we have to offer, from webinars and publications to conferences, certifications, and much more. Let's get started and meet the people behind the processes.

Heather Grimshaw: Hi, we're glad you're listening. I'm Heather Grimshaw, Communications Manager for DMEC, and we're talking about the Colorado family and Medical Leave Insurance Program, which is also known as FAMLI with Tracy Marshall, who is the Director of Colorado's Family and Medical Leave Insurance Division. As a little background, I met Tracy at the 2023 DMEC FMLA/ADA Employer Compliance Conference, and she also facilitated a roundtable discussion during the 2023 DMEC Annual Conference. These conferences are attended by absence and disability management professionals around the U.S. and Canada. So Tracy agreed to talk with us about the recent roundtable discussion in August and provide some details about family. I'm going to include all of Tracy's background and title information in our Notes section, which I encourage listeners to check out, along with some links to really helpful resources on Colorado's website. But to get us started, I was hoping, Tracy, that you would kick us off by providing a high-level overview of the family and medical leave insurance program in Colorado.

Tracy Marshall: Thanks so much, Heather, and I'm really excited to be here and be talking with you today. So Colorado is quite unusual in that we're the first state to have actually had a paid family and medical leave program go through a ballot initiative. So this didn't come to us through the Legislature. This came to us because it's what Colorado voters decided that they wanted. It was known then as Proposition 118, and in the November 2020 elections, about 57% of Colorado voters decided that a paid family and medical leave program was something that they wanted. The Colorado Department of Labor was tasked with building out the program through the family division. So far, we're all on track. Things are looking good. We began collecting premiums from employers on January 1 of 2023. And that's been going well for now, three quarters, and then we'll be starting to take claim applications next month before we start paying out benefits January 1 of 2024. We're counting down by days now, not even weeks or months anymore.

Heather Grimshaw: I bet that's exciting. Well, it was great to see you at the compliance conference earlier this year and then again at the annual conference, and I'd love to hear some of the takeaways or concepts shared that resonated with you during the conference.

Tracy Marshall: I think these conferences have such rich content. I really enjoy, personally, the opportunities to talk to the employers, to talk to our carriers, to talk to TPAs, because I think there's four different pieces to the absence management industry, and sometimes the states don't really realize that they're a part of it, too. We hear a lot about federal FMLA, we hear a lot about ADA, but we don't always hear about the states seeing themselves as a partner in that kind of four cornered relationship along with the carriers, the TPAs, and the employers. So I really do like to dive in and to learn the same lessons that my peers in the absence industry are learning. And I'm not going to lie, I also like to get the CEUs because I have my credentials through these kind of organizations, so I've got to keep myself current as well.

Heather Grimshaw: I appreciate that reference to the four corners or the different pieces and think it is so valuable when everyone can get together, sit around a table in any venue or setting, and really hear some of the challenges as well as solutions; lessons learned, [and] what works best. So you facilitated a roundtable discussion during the annual conference, and I'm hoping that you'll share some takeaways from that discussion. Again, pointing back to your comment that states frequently maybe don't see themselves as part of that picture with the four quadrants.

Tracy Marshall: Yeah, absolutely. There were certainly some themes, one of the main ones being that employers really just wish every state would roll out an identical program. It would make everyone's lives easier if we all just did the same as one another. But due to the way that these programs are brought into individual states, some of them through the legislative process or in our case through a ballot initiative, there's always going to continue to be differences. We really do have to consider that each state is creating a program for their unique populations and what's working well for New Jersey and California that just may not translate to the workforce in Minnesota or Maine. So we are going to continue to see unique benefits that are available in different populations. And I think that's just something that as an industry, we all need to come together and be able to embrace.

Heather Grimshaw: That's one of the things we hear about is that multistate employers track hundreds of leave laws in addition to the state and the federal leaves. Frequently there are also city and county laws that have been passed. So kind of narrowing into your roundtable discussion, hoping that you'll share some of the questions maybe that you got. And I'm wondering if any of the questions that you fielded gave you a different perspective on family from an employer perspective.

Tracy Marshall: I think in some ways I've been fortunate to come from the absence industry space. This is what I've done for the last several years. So I've spent a lot of time over the years talking with employers and working within a TPA. I think one of the things that I do wish that maybe employers knew earlier is that come and have a voice at the table. Right? Think of the state's rulemaking hearings and that rulemaking process. Compare it to your ADA interactive process. Right? You're going back and forth. You're having that conversation. You're asking what you can do to best support and then what the organization can do to best support you. In many, many ways, that's the rulemaking process. But if the employer communities don't put themselves at the table, it's going to be really difficult for their voices to become elevated. I would say employers, definitely communicate with your TPA, if you have one, make sure that you're working together to understand how they can best support you and support your employees. And then I would also know our small employers, I don't want them to be forgotten either. Again, we have a lot of education and information around FMLA, but there are now many, many small businesses who have never had to be concerned with FMLA before. But suddenly their state is starting a PFML program, and they can feel a little bit dazed and confused. So I really do think there's an opportunity for us smaller businesses to receive good education, and I think that responsibility sits not only with us in the states, but also with the private industry and DMEC as well.

Heather Grimshaw: I really appreciate you bringing up the smaller employers. And if I'm remembering correctly, the Colorado law, the family applies to employers with nine or more employees. Is that correct?

Tracy Marshall: You know you're close. It actually covers everyone. People who are self-employed, they can be part of our program. People who only have one employee can be part of our program. There really is no limit or no business too small, shall we say.

Heather Grimshaw: Well, that's fantastic from an employee perspective, and I think certainly helps in terms of the context of what you said earlier with smaller businesses that may not have had to worry about this or consider it from a practical perspective. You mentioned that you come from the absence space, which is I can only assume, incredibly helpful to you as you're working with so many different partners. You had shared with me when we first met that some of the DMEC resources had provided valuable insights, and I was hoping that you would talk a little bit more about that.

Tracy Marshall: I think when people come into this line of business that they don't really realize always that it's such a unique industry, and it's very different than many of the other things that people may have done. Whether you've got a healthcare background or an insurance industry background, or in the case of many of the states, we have people that transition from the unemployment insurance field or workers compensation, vocational rehabilitation. Those are just some of the areas where I've acquired staff members from. So taking them from a space where they have individual employees that need a benefit from the state, and then translating that into a paid family and medical leave benefit from the state, and helping them understand the differences and understand how FMLA and ADA and short- and long-term disability, how all of those things may or may not play into the experience for an individual.

Heather Grimshaw: That's great context. And I think you made the comment earlier that some small employers feel dazed and confused when they look at all of these different pieces and parts to absence and disability management. I think that frequently when I hear speakers talk about all of these different moving pieces and parts, it is very complex and confusing, and seemingly increasingly so as more states across the U.S. pass these paid family and medical leave laws.

Tracy Marshall: Absolutely. And I think even little things like terminology, we had some really good feedback recently where somebody was looking at our documentation and different things that we're building ready for the launch, and we're using terminology that's common in this industry. So, bonding, exigency. And they asked me, is that bonding because somebody needs support getting out of jail? What's exigency? And we don't think about that necessarily because we live and breathe this terminology every single day. But if you're hearing those words for the very, very first time, you may not know what they are. So we're making a much more concerted effort to ensure that potential claimants and employers that are trying to do the very, very best that they can are understanding the language that we're using.

Heather Grimshaw: That's a great comment. I think that's something that absence and disability management folks are finding within the organizations they work in as they talk to employees looking for leave and frankly, not understanding some of the forms, some of the information that is provided. But to your point, it's that kind of inside baseball. We know some of these terms, but if you don't live and breathe it, you wouldn't understand it. And it's wonderful to hear that there's opportunities for employers to give that type of input, or maybe these are employees in Colorado and be able to access you and your team and get that information that they need. I think I actually saw on your website that you all are doing meetings throughout the state.

Tracy Marshall: Yes, we've done several things around the state. So what you would have seen on our website is our roadshows. We've been traveling north, south, east and west throughout Colorado and going in person into communities to get feedback and to answer questions and hear from the small businesses and the agricultural side of our state and the industrial side of our state. So we've been doing a lot of that hearing from our ski industries and the unique needs that they have with our seasonal employees and how leave is going to impact them in that kind of area of expertise. And then something else that we've done that's more behind the scenes is we've sent people out testing in the field. So we've gone to libraries in very, very small towns to see whether or not somebody can file a claim in our system from their local library. We've also gone into areas that we know maybe don't have the most reliable technology and bandwidth for internet use. We've gone to those places to make sure that people could still file a claim. We've gone and taken the oldest smartphones that are probably not very smart anymore to see if we're able to use our technology and our application system on those, just to make sure that we're not leaving people out. We need to take care of every worker in Colorado, not just the ones that are in the metro capital area.

Heather Grimshaw: That's impressive to hear that work that's taking place. And earlier you encouraged or made the comment about how important it is that employers have their voices heard. I'm wondering, during these roadshows, are you mainly hearing from employees or you mentioned the ski industry, are you hearing from employers during these roadshows as well?

Tracy Marshall: We hear from many, many different people. Some of them have been employers, some have been caregivers that want more information for their family members. We're hearing from people who know that they're going to be needing a claim that the most recent roadshow, we had two couples there that were both expecting a little one to their family in the next couple of months, and they incorporated us into their date nights. So it's a wide range of people that we're hearing from.

Heather Grimshaw: I love that. On a more holistic level, I understand that you've encouraged some of your peers, other state leaders, to attend DMEC conferences and webinars, and was hoping that you would talk a little bit about why you think this would be valuable for.

Tracy Marshall: You know, the states that have these programs, they're now in the absence and disability space. It's a unique segment of the insurance employer patient healthcare provider continuum, and I think it's only through engagement and understanding of industry best practices and potential pitfalls that we can build programs that really do serve every citizen within our states. I personally believe in being available and open to feedback from industry experts who have seen the challenges and the successes of a mandated program that employers must adopt. I want to understand how we can help everyone feel that this is a true benefit and not a burden. And with our private industry partners and with our insurance industry carrier partners, together, we're all working to raise the floor of benefits. So we very much have a common goal. I don't see us as competition necessarily, but I do think that every single worker, whether their employer has gone the private route or the state public route, deserves to have the very best experience possible.

Heather Grimshaw: You mentioned there the private route or the state route. In Colorado, there is the opportunity to have a private insurance company help with family. Is that correct?

Tracy Marshall: Yeah, there certainly is. Employers have a few different choices. They can choose to be self-insured and run this themselves so long as they're able to offer a program that provides equal or more generous benefits. So that's certainly one option that they have available to them. Another one is that they have the option of utilizing one of the many carriers that are out there. I believe that Colorado has approved 19 different carriers, and those carrier options are certainly available for employers in Colorado if that's what they prefer to do. And then their third option is obviously staying with us, staying with the state. I would love to see them do that, but I also fully support the fact that we have choices, and I want to support the ability to have those choices.

Heather Grimshaw: That's very helpful. Thank you. I do think that is part of, as I understand it, the nuance across the US that is sometimes confusing for employers. It is an interesting patchwork to understand. I think that's what we hear at DMEC from employers as they try and learn the best way to do this so that they can support their employees. I really appreciate your time today and hope that we can continue this conversation once the benefits are live in 2024. And so appreciate you sharing your expertise today.

Tracy Marshall: Thank you so much, Heather. It was an honor to be here and spend time with you. And, yeah, I look forward to connecting when I can say that we're fully launched and successful.

Heather Grimshaw: Wonderful. Well, good luck with the process.

Tracy Marshall: Thank you.