Editor’s note: This article is part of an ongoing series intended to help employers prepare for the January 2024 start of employee benefits under Colorado’s FAMLI program. Look for additional articles in the coming weeks.
Colorado’s Family and Medical Leave Insurance Program (FAMLI) was designed to be able to run concurrently with the federal Family and Medical Leave Act (FMLA). However, coordination of the programs remains one of the most challenging aspects of FAMLI. This article points out some of the similarities and differences between FAMLI and FMLA to help answer some of the questions you may have.
Is the employee’s leave paid or unpaid?
FMLA leave is unpaid. The FAMLI program provides partial wage reimbursement from the state FAMLI insurance fund when an employee is unable to work for a qualifying reason. The percentage of wages the FAMLI program will pay is based on a sliding scale. The percentage reimbursement is inversely proportional to the employee’s wages, i.e., the lower the employee’s average weekly wage, the higher the percentage of the employee's wages that will be reimbursed.
How do FAMLI and FMLA treat accrued paid leave?
The two statutes treat accrued paid time off differently. Under FMLA, an employer can mandate that employees exhaust any paid time off they have accrued, whether paid sick leave, vacation, or PTO.
Under FAMLI, however, employers cannot require employees to use accrued paid leave to make up the gap between the percentage of wages the FAMLI program pays and the employee’s regular wages. Employers may, however, permit an employee to use accrued paid time off for this purpose. Under no circumstances, however, can an employee receive more in compensation than their average weekly wage.
Is the leave job-protected?
FMLA is job-protected leave. An employer must restore an employee on FMLA leave to the same or an equivalent position when the employee returns to work.
Under FAMLI, the employee’s leave is only job-protected after the employee has worked for the employer for 180 days in the past 365 days. The 180 days need not be consecutive.
Are all employers covered employers under each statute?
Not necessarily. To be a covered employer subject to the requirements of FMLA, a private employer must maintain an employee count of at least 50 employees over 20 non-consecutive weeks in the current or previous year. All public employers are covered regardless of the number of employees they have.
All employers, private and public, with at least one employee in Colorado must comply with the FAMLI statute, although public employers and private employers with approved private plans may elect to opt out of FAMLI.
Which employees are eligible for coverage?
To be eligible for FMLA protection, an employee must have worked for the employer for 12 months (non-consecutive), have actively worked at least 1,250 hours in the previous 12 months, and work at a location with at least 50 employees within a 75-mile radius.
FAMLI, however, is not predicated on the length of time the employee has worked for the employer. If an employee has earned $2,500 working in Colorado for any employer, they are eligible.
If an employee requests FMLA leave, the employer must notify the employee that they may be eligible for leave under the FAMLI Act.
Can independent contractors participate?
FMLA is available only to eligible employees of covered employers. Under FAMLI, however, self-employed workers are eligible to opt in.
How much leave is available?
Under FMLA, in most cases, an eligible employee with a serious health condition may take 12 workweeks of job-protected leave in a 12-month period. If the leave is to care for an ill or injured military service member, the amount of permitted leave is extended to 26 weeks.
Similarly, under FAMLI, employees are entitled to 12 work weeks of leave in a 12-month period under most circumstances. Benefits are payable up to an additional four weeks to a covered individual with a serious health condition related to pregnancy or childbirth complications.
How is the 12-month period during which an employee can take leave measured?
Under FMLA, the employer can choose to measure the 12-month period during which an employee can take leave by one of three methods: a fixed date, e.g., calendar year, anniversary date; measured forward from the day the leave begins; or rolling backward, i.e., looking back at how much leave the employee has taken in the past 12 months to determine how much available leave remains.
FAMLI requires that the 12-month period be measured forward from the date the claim is filed. Under this measured-forward method, an employee would be entitled to leave during the 12-month period beginning on the first date a claimant files for paid family and medical leave. The next 12-month period would begin the first time the claimant files for paid family and medical leave after the completion of any 12-month period.
Because these methods of counting the 12-month period during which an employee is entitled to take leave may not align if an employer has chosen either the fixed year or rolling-backward method under FMLA, it is possible that the employee would qualify for leave under one statute but not the other or that an employee’s remaining FMLA leave entitlement could be extended by FAMLI.
What types of leave are available?
An employee can take leave for the following reasons under FMLA:
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For their own serious health condition
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To care for a spouse, parent, or child with a serious health condition
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For the birth of a child or placement of a child for adoption or foster care
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To attend to qualifying exigencies arising out of a spouse, child, or parent’s military service or call to service
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To care for a covered service member with a serious injury or illness
While the reasons an employee can qualify for FAMLI leave are similar, they are not identical. An eligible employee can take FAMLI leave for the following reasons:
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To care for a family member with a serious health condition
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For the care of a newborn, adopted child, or fostered child
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For qualifying exigency leave
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To address safety needs or the impact of domestic violence and/or sexual assault
Are the people for whom an employee can take caregiver leave the same under each statute?
No. The individuals for whom an employee can take caregiver leave are more extensive under FAMLI.
Under FMLA, caregiver leave can be taken by an employee to care for a spouse, parent, or child (under 18, unless incapable of self-care) with a serious health condition.
FAMLI expands this definition to include the following:
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Regardless of age, a biological, adopted, or foster child; stepchild or legal ward; a child of a domestic partner; a child to whom the covered individual stands in loco parentis; or a person to whom the covered individual stood in loco parentis when the person was a minor
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A biological, adoptive, foster, or stepparent or legal guardian of a covered individual or covered individual’s spouse or domestic partner or a person who stood in loco parentis when the covered individual or covered individual’s spouse or domestic partner was a minor child
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A person to whom the covered individual is legally married under the laws of any state or a domestic partner of a covered individual
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A grandparent, grandchild, or sibling (whether a biological, foster, adoptive, or step relationship) of the covered individual or covered individual’s spouse or domestic partner
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As shown by the covered individual, any other individual with whom the covered individual has a significant personal bond that is or is like a family relationship, regardless of biological or legal relationship
It is important to remember that when two statutes with different requirements both apply, the one that provides the greatest protection to the employee must be followed. Because many situations will fall under the protection of both FMLA and FAMLI, employers will need to be familiar with the requirements of each and apply the appropriate rules in each situation.
Employers Council offers some helpful resources:
Employers Council attorneys and HR consultants are available to assist Consulting and Enterprise members with questions. Contact us at info@employerscouncil.org.
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