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2021 Op. Colo. Att'y Gen. 1 (2021)

handle is hein.sag/sagco2021 and id is 1 raw text is: PHIL WEISER Attorney General NATALIE HANLON LEH Chief Deputy Attorney General ERIC R. OLSON Solicitor General ERIC T. MEYER Chief Operating Officer STATE OF COLORADO DEPARTMENT OF LAW RALPH L. CARR COLORADO JUDICIAL CENTER 1300 Broadway, 10th Floor Denver, Colorado 80203 Phone (720) 508-6000 Office of the Attorney General FORMAL ) OPINION ) No. 21-01 ) OF ) ) March 5, 2021 PHILIP J. WEISER ) Attorney General ) Kara Veitch, Executive Director of the Colorado Department of Personnel and Administration and designee of Governor Jared Polis, requested this Formal Opinion under § 24-31-101(1)(d)(II), C.R.S. (2020). QUESTIONS PRESENTED AND SHORT ANSWERS Questions Presented. (1) Is the State Personnel Director (Personnel Director or Director) authorized to adopt and implement a new type of leave, specifically paid family leave, for employees within the Colorado state personnel system? (2) If so, is it lawful for the Personnel Director to adopt and implement a job- protected leave benefit for family and medical reasons as codified in 4 Code Colo. Regs. 801-1, § 5-16? Short Answers. (1) Yes, as a general rule, the State Personnel System Act (Act), § 24-50-101, et seq., C.R.S. authorizes the Personnel Director to adopt benefits, including leave benefits, even if not explicitly provided for by statute. The power to do so is significantly circumscribed, however, and the Director must ensure that any new type of leave benefit: (1) is adopted pursuant to technically and professionally sound survey methodologies; (2) is typically consistent with prevailing practices; (3) is adopted pursuant to formal rulemaking processes; and (4) is not inconsistent with and does not change any leave provisions already provided for by statute. Only if all these conditions are satisfied does the statute authorize the Personnel Director to adopt paid family leave as a nonstatutory benefit. However, while the Personnel

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