Colorado Family and Medical Leave Insurance Program (FAMLI)

Colorado Paid Family and Medical Leave – What Is It?

The Colorado FAMLI Program provides up to 12 weeks of paid time off (and an additional 4 weeks for pregnancy/childbirth complications) for employees with 6+ months' tenure via a state-run insurance fund paid by employers and employees (unless the employer covers their employees' portion).

How can covered workers use FAMLI leave?

• To manage their own serious health condition
• To care for a family member with a serious health condition
• To care for a new child (within the first year of birth, or foster placement, or adoption)
• To make arrangements for military deployments
• To address immediate safety needs & impact of domestic violence, sexual assault, and stalking

What is a “Family member”?

• Child (biological, adopted, foster, stepchild, legal ward, or that of domestic partner)
• Parent (biological, foster, stepparent, legal guardian, or that of domestic partner).
• Legally married
• Grandparent, grandchild, or sibling (biological, foster, or step of self or domestic parent)
• Any other individual with whom the employee has a “significant personal bond that is or is like a family relationship, regardless of biological or legal relationship.”

Timeline
On January 1, 2023, contributions/premiums begin at 0.9% of the employee's wage with 0.45% paid by each employer and employee.  However, Employer may pay full 0.9% as a job benefit. On January 1, 2024, employees can begin applying for benefits with same contribution amounts.  Beginning January 1, 2025, Director of program may increase total contribution amount from 0.9% to 1.2%.

Eligibility

Most employees are eligible for benefits if they have earned $2,500 in wages in Colorado the last four calendar quarters prior to seeking FAMLI leave.

Employers with nine or fewer employees do not have to contribute  to the program, but they do need to remit their employees' share (.45%) of premium payments on their behalf each quarter (Payable by Employee, or by Employer as a benefit).

Employers offering their own private plans, allowing them to avoid FAMLI, must have their plans pre-approved by the Division and the plan must provide the same rights, protections, and benefits as Colorado's FAMLI paid leave program (to include the same or less cost (deduction) to the employee).

Employee Benefits

During their leave, employees will receive between 37% and 90% of their wages. Benefits are capped at $1,100 per week.

Employer Violations

If an employer refuses to provide FAMLI for an employee's qualifying reason, or retaliates against an employee for requesting or taking FAMLI leave, the employee may sue (via civil action in Court). The statute of limitations for bringing a FAMLI claim is two years; three years if the violation is willful.  Employers found to have violated FAMLI are subject to damages including back and front pay, liquidated damages, injunctive/equitable relief (e.g., reinstatement to former position), and attorney's fees & costs.

EMPLOYER Q & A
Do I pay my employee when they are out on leave?

No. Similar to unemployment benefits, FAMLI is an insurance program. If FAMLI leave is approved for one of your employees, their wage replacement while they are on FAMLI leave is paid by the state, not by you. This provides your business with the flexibility to use those dollars to meet that need in whatever way makes sense for your business, whether that's a temp, paying overtime to other employees, etc.

How are the premiums contributed to the program, and how are employees paid?

Employees will see a FAMLI wage deduction on their paystubs – unless the employer pays for the employee's premiums as a benefit. Employers submit both their share (if required) and their employees' share via an online system each quarter. Employees are paid within two weeks of filing claims & every two weeks thereafter.

How will I know when my employee is taking FAMLI leave? When will my employee be back to work?

Like with unemployment, your business will be notified when an employee submits a claim for FAMLI benefits, if and when that claim is approved, as well as an estimate of when that employee is expected to return to work.

Do I really have to hold a job for an employee out on FAMLI leave?

Yes. If an employee has worked for 180 days for the same employer, then job protection is mandated.

How does FAMLI impact multi-state employers?

Employers count all employees, regardless of location to determine if they have 9+ employees.
If so, they make FAMLI program payments for the Colorado-based employees only.

Can an employer require employees to use available vacation or sick  leave prior to using FAMLI?

No. Employers cannot require employees to use available vacation or sick leave prior to using FAMLI.

Does FAMLI provide intermittent leave?

Yes – employees can take intermittent leave of 1 hour or less (if employers measure increments of work in smaller amounts).  Once the employee accumulates 8 hours of FAMLI leave, it becomes payable.

Do employees have to provide some sort of notice before taking FAMLI leave?

Yes – employees should provide at least 30 days' notice for taking FAMLI leave.  However, if it's not foreseeable, then notice is to be provided as soon as practicable.

Who will assess reasons for using FAMLI leave, including reviewing any needed documentation?

Because FAMLI is a state-run program and employees make FAMLI leave requests to the state, the expectation is that the state will approve or deny leave requests – and therefore assess employee leave requests including obtaining any needed documentation to make such assessments.  It is possible the state will require employers to assist in the FAMLI leave approval process.

Resources - Preparing For FAMLI

Stephen Rotter, Managing Partner, The Workplace Counsel – [email protected]

State Resources:

• Colorado FAMLI Website: https://famli.colorado.gov/
• Webinars: https://famli.colorado.gov/employers/employer-webinars
• FAQs: https://famli.colorado.gov/employers/employer-faqs
• Newsletters: https://famli.colorado.gov/employers/famli-newsletters
• Employer Toolkit: https://famli.colorado.gov/employers/famli-toolkit-for-employers
• Email: [email protected]