Sen. Stephen Fenberg and daughter, Isa

Sen. Stephen Fenberg holds his daughter, Isa, during Fenberg's installation as Senate President on Feb. 22, 2022. 

Colorado could become the first legislature in the country to have a formal law in place that grants paid family leave to legislators.

A month ago, Senate President Steve Fenberg of Boulder toyed with the idea of paid leave for lawmakers, but wondered whether it would be constitutional, given that lawmakers cannot obligate future legislatures on funding matters.

Last week, Fenberg introduced Senate Bill 184, which would modify the existing statute regarding compensation for lawmakers who need to take time off for parental leave.

Current law allows a member of the General Assembly to be gone for long-term illness. That law has been applied several times in the last two years to women lawmakers who gave birth. 

About a dozen current lawmakers have added babies to their families in the last six years, including Fenberg, House Speaker Alec Garnett, House Majority Leader Daneya Esgar of Pueblo, two Democratic senators, and six other members of the House on both sides of the aisle.

The existing statute deals with compensation. If a lawmaker is gone for one-third or more of the session – a minimum of 40 days – that portion of their pay would be forfeited. However, that can be waived by the Speaker of the House or Senate President, and that's what happened for long-term absences for both Sen. Brittany Pettersen, D-Lakewood, who took a leave during the 2020 session, and Sen. Jessie Danielson, D-Wheat Ridge, who did the same this session. Pettersen was excused for 36 days out of the 84-day session, which got shortened during the pandemic. Danielson, meanwhile, was excused for 53 out of the first 54 days this year. 

The statute appears to date back to 1953. 

SB 184 removes long-term illness from one portion of the statute and replaces it with absence "for any purpose." But what makes SB 184 unique is that it allows lawmakers to take a maximum of 12 weeks of parental leave, plus an additional four weeks for a serious health condition related to pregnancy or childbirth complications, and do so during the session. The leave would also apply out of session, which would cover lawmakers who have extensive duties outside of session, including leadership.

Twelve weeks of paid leave during the legislature equates to 84 days, which would be more than two-thirds of the 120-day session.

According to the National Conference of State Legislatures, only Massachusetts offers language around pregnancy, but it isn't really about leave or pregnancy. Instead, it's about who answers roll call on behalf of the absent lawmaker.

Massachusetts Senate Rule 57 says if a member is prevented from voting in the Senate because “of disability or due to a condition related to pregnancy, childbirth or nursing a child,” the chamber's president shall assign a “court officer to answer the roll call on behalf of the member so long as the disability continues.”

"We are an interesting workplace," Fenberg told Colorado Politics, referring to the fact that legislators are elected and technically not employed by the speaker or Senate president. So, lawmakers don't answer to bosses within the building. They also don't clock in, and, as a result, a different set of human resource policies applies to elected officials.

"We are accountable to our constituents," Fenberg said.

But the General Assembly wants to be inclusive and not intentionally — or unintentionally — create barriers for who can run or serve, the Senate's top leader said, adding, "I see this as a step toward a more inclusive democracy in terms of who can run and serve."

What his bill says is, if a lawmaker is absent because of parental leave, the lawmaker's pay won't get docked. That statute is not about whether someone can be absent; it's about forfeiting pay, Fenberg said.

"This says no one will be penalized for having a child while serving in the legislature," he said, noting that, because the General Assembly is a citizen legislature with a fixed 120-day session, lawmakers can't take 40 days off and make up that time during the summer, Fenberg said. 

"It's important that no matter who's in charge, and who the member is, that everyone knows that to be a legislator you don't forfeit the ability to have a family, and we want to be sure it's clear in policy," Fenberg said.

The bill's fiscal note says it codifies existing practice — no lawmaker has been penalized for missing extended periods of the session in recent history — and hence would not result in a fiscal impact. 

The sponsors of the legislation are all lawmakers who have had children since joining the General Assembly: Fenberg, Pettersen, Esgar and Rep. Kerry Tipper, D-Lakewood.

The bill gets its first hearing on Tuesday in the Senate State, Veterans and Military Affairs Committee.

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