Colorado has issued final rules addressing employer participation requirements and benefits under the state’s paid family and medical leave insurance program. The final rules take effect on Oct. 15, 2022.
Employers can also meet the legal requirements through a private plan, as opposed to the public, state-run plan. The rules on private plans have not been adopted at this time but in general a private plan must provide equal or greater benefits and protections than the public plan.
All employers will need to collect and remit premiums under the public program beginning Jan. 1, 2023, even if the employer intends to meet the requirements through a private plan. However, employers will be eligible for a refund of these premiums if they have received approval by the state for a private plan with an effective date on or before Jan. 1, 2024.
The focus of this update is on the public plan option.
The Details:
By way of background, beginning January 1, 2024, eligible employees may receive up to 12 weeks of leave and wage-replacement benefits in a 12-month period for the following purposes:
- To care for their own serious health condition;
- To care for a new child during the first year after the birth, adoption, or placement through foster care of that child;
- To care for a family member with a serious health condition;
- Because of any qualifying exigency arising out of the fact that a family member is on active duty (or has been notified of an impending call or order to active duty) in the armed forces; and
- When the employee or their family member is a victim of domestic violence, stalking, or sexual assault.
Note: Employees with a serious health condition related to pregnancy or childbirth complications may take up to an additional four weeks (16 weeks in total).
Employees must make a reasonable effort to schedule leave to avoid unduly disrupting the employer’s operations. When the need for leave is foreseeable, an employee must provide at least 30 days' notice to their employer. If the necessity for leave isn’t foreseeable, the employee must provide the notice as soon as practical.
Employers must:
- Post a notice on the program in the workplace; and
- Notify employees about the program in writing at the time of hire and when they learn that an employee is experiencing an event that would trigger such leave.
Final Rules:
The final rules define various terms and clarify issues related to benefits and employer participation requirements. Here are some examples:
Employer Participation Requirements:
The final rules require employers to register with the Division of Family and Medical Leave Insurance (DFMLI) via “MyFAMLI+ Employer” by January 1, 2023, or when they become an employer, whichever occurs later.
Employers must submit wage reports to the DFMLI via “MyFAMLI+ Employer” on the same quarterly schedule as they submit premiums. If an employer fails to submit timely wage reports, the DFMLI may assess a fine of up to $50 per employee whose wages weren’t reported.
Employee Eligibility:
To be eligible for benefits, employees must earn $2,500 during their “base period.” The final rules clarify that this $2,500 threshold can be met from any combination of employers, and it need not include their current employer.
Serious Health Condition:
The state will generally use the federal Family and Medical Leave Act’s provisions regarding “serious health condition” to determine whether an employee’s or family member’s condition qualifies.
Applying for Benefits:
To request benefits, the employee must apply to the DFMLI. Applications may be submitted up to 30 days prior to the benefit start date. The DFMLI will notify the employer of the application submission within five business days. If the need for leave is unforeseeable, applications may be submitted up to 30 days after the leave has begun.
Employee Notice to Employer:
The final rules clarify that employee notice to the employer doesn’t need to include any specific terms or reference specific provisions of the paid family and medical leave law or its implementing regulations, but the notice must reasonably implicate qualifying leave under the law. Employers may require the notice to contain the anticipated start time, anticipated duration, and where applicable, anticipated frequency of leave.
Notification must be in the same manner as the employee and employer typically communicate work availability, and absent unusual circumstances, must comply with the employer’s usual and customary notice and procedural requirements for leave. Unless those requirements are contrary to rights, benefits, or protections afforded to the claimant under the law and its implementing regulations.
Note: If employers fail to post the required notice about the program, they are prohibited from taking adverse action against employees who fail to provide notice.
Rolling Twelve Months:
To determine the amount of leave an employee has available, a 12-month period that is measured backward from the date an employee uses paid family and medical leave benefits must be used. Under this ‘‘rolling’’ 12-month period, each time an employee takes paid family and medical leave, the remaining leave entitlement would be the balance that hasn’t been used during the immediately preceding 12 months.
Fitness For Duty Certifications:
The final rules clarify that employers aren’t prohibited from requiring an employee to provide certification of their fitness for duty prior to returning to work from paid family and medical leave, provided it isn’t used to discriminate, retaliate, or interfere with the employee’s rights.
Next Steps:
- Register with “MyFAMLI+Employer” by January 1, 2023 once the site goes live.
- Withhold premium payments and submit quarterly wage reports beginning January 1, 2023.
- Visit the CO Department of Labor and Employment’s website for more information.
Please contact your ADP service professional if you have any questions.