State Issues Further Regulations Implementing Family and Medical Leave Law

On August 26, 2022, the Department of Labor and Employment’s Division of Family and Medical Leave Insurance (the division) adopted rules on benefits and employer participation in the state’s Family and Medical Leave Insurance program (FMLI). We covered FMLI and earlier rules issued by the division in the May 26, 2022, edition of Compliance Corner.

Although the program does not start until January 1, 2024, the new rules require employers (even those who choose to use a private plan rather than the state plan) to register with the division by January 1, 2023. Employers must also submit wage reports on the same schedule that they remit their premiums. An employer with no Colorado employees will not be required to remit premiums, submit wage reports or otherwise participate in the FAMLI program.

The new rules also outline the procedure for employees to apply for the benefit. Employees must apply to the division 30 days before the expected start date of the leave, although they can have up to 30 days after the leave begins to apply if the circumstances warrant it. The division informs both the employer and the employee that the application is properly filed within five business days and determines whether the applicant qualifies for the benefit within two weeks after the application is submitted. The rules also allow employers to require their employees to let them know of the need for the leave independently of the application to the division, in the same manner as requests for other leave as required by employer policy.

The division will inform both the employer and the employee of its determination. If the division grants the benefit, it will also inform both parties of the duration of the leave. If the employer requests it, the division will also provide the employer with limited information necessary for the employer to coordinate FAMLI benefits with other benefits for which the claimant is eligible, including the wage replacement amount and the reason for leave. Such information provided by the division must be stored and maintained in accordance with all applicable federal, state, and local confidentiality laws and regulations.

The new rules give the employer and employee the right to appeal the division’s determination. An employer may file a grievance with the division if it has a good-faith belief, supported by evidence, that the division has granted benefits to an employee either in violation of the FAMLI Act or if the grant unduly disrupts the employer’s operations. Employees can appeal a denied application within 30 days of the adverse decision; the division will designate a hearing officer and hold an appeal hearing, in which both the employer and employee can participate. The hearing officer’s decision is subject to judicial review.

The new rules also impose certain obligations upon an employee on this leave, including the obligation to inform the division of any change that could affect the duration of that leave. If the division adjusts the duration of the leave as a result, then the division will inform the employer.

In addition to these procedural rules, the new regulations include some clarifications. For instance, a “covered individual” who may receive benefits is one who has earned $2,500.00 from any combination of employers, and a claimant need not earn $2,500.00 from their current employer to meet the threshold. In addition, the division will determine whether a person is considered a “family member” whose serious health condition warrants a grant of benefit to an applying employee by considering not only a significant personal bond that is or is like a family relationship, but also several other factors while looking at the totality of the circumstances surrounding the relationship.

Employers with Colorado employees should be aware of these new clarifications and procedures.

Regulations Concerning Benefits and Employer Participation Requirements »