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Summary of differences between federal and state regulations
In addition to the federal FMLA, Colorado employers need to be aware of state provisions, such as paid family leave, paid sick leave, adoption leave, and domestic violence/crime leave.
Paid family leave (Prop 118, FAMLI)
In 2024, employees began to be entitled to take leave under the CO paid family and medical leave (PFML) provisions (Prop 118 from 11/2020 ballot). This is also known as FAMLI for the Family and Medical Leave Insurance. The paid leave is funded by contributions from both employers and employees. Premiums began being collected January 1, 2023, and employees could begin taking leave January 1, 2024.
For 2024 and 2025, the payroll tax is set at 0.9% of the employee’s wage; with employers and employees each paying 0.45%.
Effective January 1, 2024, CO FAMLI premiums and benefits are calculated to mean “gross wages” and will include typical employer compensation. This aligns with the CO Unemployment Division’s definition of wages.
Gross wages will include the following post-tax amounts:
- Salary
- Hourly wage
- Overtime
- Tips
- Bonuses
- Commissions
- Piece rate
- Employer-provided paid leave (PTO, sick, vacation, etc.)
- Disability benefits paid by the employer and not by a third-party
- Parental leave paid by the employer and not by a third party
- The value of lodging or meals used as a credit toward the minimum wage
Gross wages will not include:
- Severance payments
- Deferred compensation contributions or payments
- Profit-sharing
- Pensions or retirement plan payments
- Expense reimbursements (mileage, travel, moving, per diems, etc)
- Non-monetary payments (except lodging or meals to the extent they’re used as a credit toward the minimum wage)
Employers with fewer than 10 employees are not required to pay their share of the premium, but they must withhold and pay the employees’ contribution into the leave fund.
Covered employers
All employers with at least one employee in Colorado will be required to provide the leave.
Employers may meet the requirements of FAMLI through a private plan as opposed to the default public, state-run plan. A private plan must provide equal or greater benefits and protections than the public FAMLI plan.
Employee eligibility
Employees are eligible to take the PFML if they have earned at least $2,500 in wages subject to PFML premiums. The wages may be earned from multiple employers.
Employees' jobs are protected if they have been employed by your company for at least 180 days before taking PFML.
Leave entitlement
Eligible employees are entitled to up to 12 weeks of paid leave in a year (measured forward from applying for leave) for most reasons, and an additional four weeks for pregnancy or childbirth complications.
“Application year” as a “benefit year,” is the 12-month period beginning on the first day of the calendar week in which an individual’s benefit start date occurs. The 12-month period is measured backward from the date an employee uses paid family and medical leave insurance benefits. Under this ‘‘rolling’’ 12-month period, each time an employee takes paid family and medical leave, the remaining leave entitlement would be the balance which has not been used during the immediately preceding 12 months.
If, for example, an employee began leave on 2/11/24 and took all 12 weeks of FAMLI leave, he would not be entitled to more FAMLI leave until 2/11/25.
As a part of the CO MyFAMLI+ Employer registration process, Premiums Admins can add an HR Benefits Contact. Once that is done, the HR contact can review, in the Benefits dashboard, the employees’ benefit start dates and claim statuses. HR contacts can add/manage users to view employee claim information.
This designated contact will be the go-to person who receives updates when an employee applies for FAMLI leave.
Qualifying reasons for leave
Eligible employees may take up to 12 weeks of paid family and medical leave for the following reasons:
- Caring for their own serious health condition, meaning an illness, injury, impairment, pregnancy, recovery from childbirth, or physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider;
- Caring for a new child during the first year after the birth or adoption or foster care placement;
- Caring for a family member with a serious health condition;
- Qualifying exigencies when a family member is on active duty military service or is called for active-duty military service; and
- When the individual or the individual’s family member is a victim of domestic violence, stalking, or sexual assault (safe leave).
Family members includes the following:
- Children (including children of a domestic partner),
- Parents (including parent of a spouse or domestic partner)
- Spouse or domestic partner,
- Grandparents (including grandparents of a domestic partner),
- Grandchildren (including grandchildren of a domestic partner),
- Siblings (including siblings of a domestic partner),
- Anyone with whom the employee has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship.
Employees may take an additional four weeks for complications due to pregnancy or childbirth, resulting in a total of up to 16 weeks of leave.
CO PFML may run concurrently with federal FMLA, but that should be communicated to employees. Employers may not require employees to use accrued paid time off (e.g., vacation leave, sick leave) before or while on PFML. Employers and employees may, however, agree that to use accrued paid time off while using PFML to “top off” their pay. Employees may not receive more compensation than their average weekly wage.
Maintenance of health benefits
During PFML, employers must maintain any group health care benefits employees had before taking leave. Employees continue to pay their share of the cost of the group health care benefits during leave.
Employees do not, however, accrue any other seniority or employment benefits during the PFML.
Job restoration
At the end of PFML, employees are entitled to return to the same position or a position with the same pay, benefits, and seniority or status. Employees are protected from retaliation for taking PFML.
Notice
When the need for leave is foreseeable, employees are to provide at least 30 days’ notice to the FAMLI Division. Otherwise, employees are to provide notice as soon as practicable.
Employers may require employees to inform them of the need for FAMLI leave, in addition to notifying the FAMLI Division. Employees are to follow the employer’s policies and procedures for requesting leave The FAMLI Division will inform employers of an employee’s request for leave.
The Division will also, upon request, provide information on the benefit amount and reason for leave to help employers coordinate FAMLI leave with other employer-provided leave benefits, such as PTO, sick leave, or other paid leave benefits.
Employers must post a notice describing the program and provide a notice upon learning of an employee experiencing an event that qualifies for the leave.
Paid Family and Medical Leave and the Healthy Families and Workplace Act
The new Family and Medical Leave Act (FAMLI) and the Healthy Families Workplace Act have some overlap areas, but the two laws have different focuses. The FAMLI, for example, provides paid leave for serious health conditions. The HFWA, on the other hand, is broader, and includes paid sick leave for preventative care and for pandemic-related school closures.
Healthy Families and Workplaces (paid sick leave)
Covered employers
The CO paid sick leave applies to all employers regardless of how many employees.
All employers in the state, regardless of size, were required to provide a new supplement of up to 80 hours of COVID-related leave beginning in 2021. This ended June 9, 2023.
Eligible employees
No real eligibility criteria. Employees earn/accrue leave at the rate of one hour for every 30 hours worked.
Leave entitlement
Employees may earn/use more than 48 hours each year (more if the employer allows). Employers may front-load the leave each new leave year. Employees begin to accrue paid sick leave when they begin working and may use it as it is accrued.
Employees may carry over up to 48 hours of unused leave in a subsequent year. Employers may limit the use of leave to 48 hours per year.
Concurrency with other applicable laws is not specifically prohibited.
Employees must use paid sick leave in hourly increments unless the employer allows for a smaller increment.
Unused paid sick leave need not be paid out upon termination. Employees reinstated within six months pick up where they left off.
Public health emergency supplemental leave
During a public health emergency (PHE), all employers, regardless of size, must provide each employee additional HFWA paid leave. The leave is to be provided until four weeks after the official termination or suspension of the PHE.
The COVID PHE expired June 8, 2023.
Employers are to provide employees with enough supplemental leave to assure they can take leave in the following amounts:
- For employees normally working 40 or more hours in a week, 80 hours of total leave; and
- For employees normally working under 40 hours in a week, the greater of the number of hours the employee (a) is scheduled for work or paid leave in the 14-day period after the leave request, or (b) actually worked in the 14-day period prior to the declaration of the public health emergency or the leave request.
Reasons for the additional leave during a public health emergency such as COVID-19:
An employee’s need to:
- Self-isolate and care for oneself because the employee is diagnosed with a communicable illness;
- Self-isolate and care for oneself because the employee is experiencing symptoms of a communicable illness;
- Seek or obtain medical diagnosis, care, or treatment if experiencing symptoms;
- Seek preventive care concerning a communicable illness;
- Care for a family member who:
- Is self-isolating after being diagnosed;
- Is self-isolating due to experiencing symptoms;
- Needs medical diagnosis, care, or treatment if experiencing symptoms;
- Is seeking related preventive care.
Other reasons for leave include:
- If the employee’s presence on the job or in the community would risk exposure or the employee has symptoms;
- The need to care for a family member whose presence on the job or community would risk exposure or the family member has symptoms;
- Care for a child whose school, daycare, or care provider is unavailable;
- The employee has a condition that may increase susceptibility to or risk contracting the illness.
Reasons for leave
- The employee has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or
- Needs to obtain preventive medical care.
- The employee needs to care for a family member who has a mental or physical illness, injury, or health condition; needs a medical diagnosis, care, or treatment related to such illness, injury, or condition; or
- Needs to obtain preventive medical care.
- Family members include:
- A person who is related by blood, marriage, civil union, or adoption
- A child to whom the employee stands in loco parentis or a person who stood in loco parentis to the employee when the employee was a minor;
- A person for whom the employee is responsible for providing or arranging health- or safety-related care
- The employee or family member has been the victim of domestic abuse, sexual assault, or harassment and needs to be absent from work for purposes related to such crime; or
- A public official has ordered the closure of the school or place of care of the employee’s child or of the employee’s place of business due to a public health emergency, necessitating the employee’s absence from work.
Effective August 7, 2023 the following additional reasons are included:
- When an employee needs to grieve, attend funeral services or a memorial, or deal with financial and legal matters that arise after the death of a family member
- The employee needs to evacuate the employee's place of residence due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the need to evacuate the employee's residence; or
- The employee needs to care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected occurrence or event that results in the closure of the family member's school or place of care.
Reinstatement
Employers may not count paid sick leave as an absence that may lead to discipline, discharge, demotion, suspension, or any other retaliatory personnel action.
Notices
Employees are to provide notice of the need for leave in advance when foreseeable. The notice should include the expected duration of the absence.
For leave lasting four or more consecutive workdays, the employer may require reasonable documentation that the leave is for a qualifying reason.
Employers must notify employees that they are entitled to the leave. Employers may give a copy of the notice to employees or post it (electronic posting is acceptable for remote workers).
Related records need to be kept for at least two years. Employee health and safety information must be kept confidential.
Adoption leave
Covered employers
Colorado’s adoption leave law applies to all public and private employers.
Employee eligibility
Unlike the FMLA, an employee does not need to work a specified number of months or hours to be eligible for leave under Colorado’s provisions. Any leave that is made available to biological parents must also be made available to adoptive parents.
Leave entitlement
Leave over and above FMLA requirements is not mandated under Colorado law.
Any other benefits provided, such as job guarantee or pay, must be available to both adoptive and biological parents on an equal basis. Employers must not penalize employees for exercising these rights. These provisions do not apply to an adoption by the spouse of a custodial parent or to a second-parent adoption.
Maintenance of health benefits
There is no state provision requiring an employer to maintain coverage under any group health plan while the employee is on leave. The FMLA, however, requires that covered employers continue to provide group health insurance.
Job restoration
Unlike the FMLA, Colorado does not provide job restoration rights to employees.
Notice
Unlike the FMLA, Colorado does not mandate any notice requirements.
Family Care Act
This law takes the federal FMLA (employer coverage and employee eligibility provisions included) and tries to expand upon it by entitling eligible employees to take FMLA leave to care for a domestic partner or a partner in a civil union. These reasons do not otherwise qualify for leave under the federal FMLA.
The federal FMLA applies to private employers with 50 or more employees and all public employers. There is also a worksite provision under the federal law.
The state provisions indicate that leave taken under the state law run concurrent with leave taken under the federal FMLA. However, the federal FMLA does not allow for leave taken to care for the same family members as does the state law. Therefore, leave taken under the state provisions is in addition to leave taken under the federal FMLA.
Unemployment after FMLA leave
Employees who exhaust FMLA leave are also eligible for unemployment benefits if they are separated from a job because the employee's family member is suffering from a disability that requires the employee to care for the family member for a period that exceeds FMLA leave or the employer's leave provisions.
Domestic violence/crime leave
Employers with 50 or more employees must allow an employee who has worked for the employer for 12 months or more to request or take up to three working days of leave from work in any 12-month period, with or without pay, if the employee is a victim of domestic abuse, stalking, sexual assault, or any other crime including an act of domestic violence. The employee must be using leave to protect himself or herself by:
- Seeking a civil protection order to prevent domestic abuse;
- Obtaining medical care or mental health counseling or both for himself or herself or for his or her children to address physical or psychological injuries resulting from the act of domestic abuse, stalking, sexual assault, or other crime involving domestic violence;
- Making his or her home secure from the perpetrator of the act of domestic abuse, stalking, sexual assault, or other crime involving domestic violence or seeking new housing to escape the perpetrator;
- Seeking legal assistance to address issues arising from the act of domestic abuse, stalking, sexual assault, or other crime involving domestic violence, and attending and preparing for court-related proceedings arising from the act or crime.
Employees seeking leave must provide appropriate advance notice and documentation as may be required by the employer or the employer's policy.
Before receiving leave, employees must exhaust any and all annual or vacation leave, personal leave, and sick leave, if applicable, that may be available, unless the employer waives this requirement.
In addition, an employer may not discharge or discipline an employee who is a victim or who is a member of a victim's immediate family for honoring a subpoena to testify in a criminal proceeding or for participating in the preparation of a criminal proceeding. (CO Rev. Stat. Sec. 24-4.1-303(8))
Volunteer firefighter leave
Employees who respond to emergency situations instead of reporting to work are entitled to up to 15 days of job-protected, unpaid leave per calendar year.
There are some considerations, however.
- The employee cannot be essential to the operation of the employer’s daily enterprise.
- The employer has received written documentation from the fire chief notifying the employer of the employee’s status as a volunteer firefighter.
- The emergency is within the response area and is of such magnitude that the employee must respond.
- The employee provides a written statement from the fire chief that the absence was due to the response, verifying the time, date, and duration of the response.
- No more than 20 percent of the company workforce is taking such leave on a given workday.
Pregnancy accommodations
All employers must provide reasonable accommodations for health conditions related to pregnancy or the physical recovery from childbirth to an applicant or employee so she can perform the essential functions of a job. The individual is generally expected to request an accommodation, if needed.
You need not provide an accommodation that would pose an undue hardship. You must, however, provide written notice of the rights under the law to new employees when they are hired, and post a notice in a conspicuous place at the worksite.
You may require an applicant or employee to provide a doctor’s note stating the necessity of a reasonable accommodation.
If an accommodation is requested, you and the employee must engage in an interactive process to determine an effective reasonable accommodation. You are not required to provide paid leave beyond that which is provided to similarly situated employees.
State contacts
Colorado Department of Labor and Employment
https://www.colorado.gov/cdle
Colorado Division of Family and Medical Leave Insurance
State statutes/regulations
Paid Family and Medical Leave (FAMLI) Colorado Revised Statutes, §8-13.3-501 et seq
https://drive.google.com/file/d/18k8lo6yKHTgyk970xZnPn1o2alqXnYAa/view?usp=sharing
FAMLI premium rules:
https://drive.google.com/file/d/1aERVv_2H175AMt8SCA0NkPrHPxvqNH-P/view?usp=share_link
Healthy Families and Workplaces Act (paid sick leave) Colorado Revised Statutes, §8-13.3-401 et seq (expanded by SB 23-017, enacted 6/2/2023)
COVID supplemental leave, SB 20-205 (the COVID PHE expired June 8, 2023)
Adoption leave: Colorado Revised Statutes, §19-5-211
Family Care Act: Colorado Revised Statutes, §8-13.3-201
Unemployment: Colorado Revised Statutes, §8-73-108
Domestic violence/crime leave: Colorado Revised Statutes, §24-34-402.7
Volunteer firefighter leave: Colorado Revised Statutes, §31-30-1131
Pregnancy accommodations: Colorado Revised Statutes, §24-34-402.3
Federal
ContactsUS Dept. of Labor, Wage & Hour Division
Regulations 29 CFR Part 825, “The Family and Medical Leave Act of 1993”