At Employers Council, we have noticed an uptick in employees applying for paid leave under Colorado’s Family and Medical Leave Insurance Program (FAMLI) after being disciplined or after a meeting to discuss performance issues. This article serves as a reminder to employers on how to handle these situations.
30-Day Notice Rule
FAMLI is available to eligible employees at any time during their employment. The program requires employees to provide employers with at least 30 days’ notice prior to starting leave if the need for leave is foreseeable. However, when the leave is not foreseeable, 30 days' notice does not need to be given.
Scenario: ABC Corp. disciplines Todd on Monday. The following day, Todd informs ABC Corp that he is starting leave under FAMLI that Wednesday for six weeks due to a fall walking home from work Monday night. Here, the leave was not foreseeable, and Todd does not need to provide 30 days’ notice.
This is understandably frustrating for the employer as it tries to ensure coverage for the employee going out on leave.
Deadline for Employee to Submit Application
FAMLI expressly prohibits employers from interfering with or denying an employee’s exercise of or attempting to exercise their right to FAMLI leave.
Scenario: Todd informs ABC Corp. that he is starting leave under FAMLI tomorrow. ABC Corp. checks on Todd’s FAMLI application and notices it was not submitted. ABC Corp. wants to know what to do in this case.
This appears odd, but it is allowed. An employee has up to 30 days after the start of leave to complete their application. The benefits will be retroactively applied to the start date of the leave. As an employer, you should treat the employee as if they are on FAMLI leave on the date they tell you their leave has started until or unless you learn otherwise. You do not want to risk an interference claim if you fail to treat them as being on leave.
Whether leave is approved and retroactively applied to the leave start date is between the state of Colorado (or your provider, if applicable) and the employee. If leave is ultimately denied, the employer will want to review each denial on a case-by-case basis. The employer should consider whether any other laws may apply, such as the Americans with Disabilities Act (ADA). If there are no other applicable laws and the leave is otherwise unprotected or unauthorized, then the employer’s attendance policy can apply.
The employer should remember that the employee can appeal the denial. While the employer can take action against the employee during the appeal, the employer should be cautious. FAMLI is employee-friendly, so there is still a risk. Instead, it may be advisable for the employer to provide the employee with a written warning for unexcused absences.
Employee Entitlements While on Leave
If an employee has worked for their current employer for at least 180 days, they have job protection while on leave. This means the employee must be returned to the position they held when leave started or an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
However, FAMLI does not entitle the employee to the accrual of seniority or employment benefits during the leave period. Nor is the employee entitled to be restored to a position, right, or benefit they were not entitled to had they not taken leave.
Additionally, employees are entitled to maintain their health care benefits while on leave. Specifically, the employer must maintain the coverage the individual had prior to taking leave for the duration of the leave. The employee must continue to pay their portion of their health benefits during leave.
Company Restructuring During or After Leave
As mentioned above, FAMLI requires an employer to reinstate an employee to the position they had before leave started or an equivalent position. However, there is an exception to this requirement for legitimate corporate restructuring or layoffs where the employee’s position is eliminated. When an employee’s position is eliminated while they are on leave due to a restructuring or layoff, the employer must give notice to the employee in writing as soon as the employer decides to deny reinstatement. The notice must be given in person or sent by certified mail.
If your company is going through a restructuring or layoff where someone on leave will have their position eliminated, it is essential that you document the issue the company is having that is leading to layoffs, the decision the company made regarding how to address this issue (i.e., to lay off employees), and the neutral selection criteria used to choose who would be laid off.
Returning to Work After Leave
FAMLI prohibits retaliating against an employee for taking leave. This requirement does not mean an employer must ignore performance issues or refrain from disciplining or terminating an employee for attendance issues unrelated to FAMLI or for violating company policies. In these circumstances, documentation is crucial. The employer will need to have clear documentation to support their decision if the employee files a retaliation claim. As with any performance issue, the employer will want to ensure they consistently apply the policy and the discipline for the infraction.
Employers Council offers performance documentation training that teaches managers and supervisors how to document performance issues effectively. It should be part of your strategy to protect your company when dealing with an employee’s performance issues after returning from leave.
FAMLI can be difficult to navigate due to all the employee protections afforded under it. To learn more, please see Employers Council’s whitepaper or email us at info@employerscouncil.org.
Hannah Nelson is an attorney for Employers Council.