By Christine Lamb
Fortis Law Partners
Recently, the Colorado Sun reported that demand for benefits under Colorado’s new paid family and medical leave insurance program, or FAMLI program, has been 44% lower than expected. The reason could be partly due to confusion from employers and employees around how to utilize the different leave statutes and benefit programs, including FAMLI, the Colorado Healthy Families and Workplaces Act, short- and long-term disability insurance and the federal Family and Medical Leave Act, as well as employer-provided paid sick leave and paid parental leave.
Understanding how FAMLI interacts with HFWA, FMLA, short- and long-term disability and employers’ own paid leave programs can be confusing and leave both employers and employees wondering how much paid or unpaid leave is available, under which benefit program, and how to layer the various programs.
Here’s what employers should know about each program and what they should do next.
FAMLI
FAMLI is a newer Colorado law that provides employees with paid family and medical leave for up to 12 weeks (with an additional four weeks for pregnancy complications) on either a continuous, intermittent or reduced leave basis. The current maximum amount of paid leave allowed under FAMLI for 2024 is $1,100/week.
FAMLI leave benefits are available for:
- medical leave to care for yourself or a family member due to a “serious health condition”
- parental leave within the first 12 months after a birth, adoption or foster care placement
- various needs due to domestic/sexual abuse or criminal harassment
- needs of family members of those called to active-duty military service
Employers are required to provide notice to employees about the availability of FAMLI.
HFWA
Colorado’s HFWA requires employers to pay employees one hour of paid leave per 30 hours worked (up to 48 hours per year). The range of items HFWA covers includes:
- inability to work due to any mental or physical illness, injury or health condition
- obtaining preventive medical care (including vaccination) or medical diagnosis/care/treatment
- various needs due to domestic/sexual abuse or criminal harassment
- care for a family member who needs the sort of care listed above
- various needs and situations during a declared public health emergency
- bereavement, or financial/legal needs after the death of a family member
- a need to evacuate one’s residence, or care for a family member whose school or place of care was closed due to inclement weather, power/heat/water loss or other unexpected event.
FMLA
FMLA is a federal law that applies to businesses with 50 or more employees within a 75-mile radius. Under FMLA, employees may take up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons.
Employer-provided PTO/parental leave policies
Although not required, many employers provide paid time off to employees and may also provide some form of paid or unpaid parental leave. The eligibility to earn this type of leave and eligibility to take this type of leave are governed by the employer’s policy guidelines. However, under Colorado law, once PTO is earned by an employee, it cannot be forfeited (e.g., no “use-it-or-lose-it”).
Short-Term Disability
Short-term disability is not a federal or state-run program but rather an income replacement insurance benefit most employers offer. Short-term disability provides employees who become disabled with a percentage of their pre-disability earnings every week when employees are out of work. Companies are not required to purchase short-term disability insurance, but most do, and it is the most frequently used benefit for maternity leave pay. Short-term disability does not apply to non-birthing parents’ parental leave. The percentage of an employee’s wages that short-term disability covers and for how many weeks the benefit lasts varies depending on the insurance policy.
FAQs
How do HFWA & FAMLI interact?
If both laws could apply to a leave request – for example, if an employee has a serious health condition – the employee can choose whether to take HFWA or FAMLI leave, or both, one after another, in either order. Sometimes, leave may be covered by one law but not by another. For example, a year after a child is born, a parent needs to take the child to the pediatrician for a check-up and vaccinations. HFWA applies; FAMLI does not. Or, a new parent wishes to stay home to bond with and care for their newborn child, but not due to any medical condition or health need of the child or a parent. FAMLI applies; HFWA does not.
How do FAMLI and employer-provided PTO interact?
Sometimes, employees qualify for both FAMLI benefits and earned PTO from their employer. Employers cannot require employees to use earned PTO before they use FAMLI leave, but employees may choose to do so. Often, FAMLI benefits, which are capped at $1,100/week in 2024, are not enough to fully replace an employee’s weekly earnings. In that example, employers and employees can enter into a signed written agreement to use the employee’s accrued PTO to “top-off” their FAMLI benefit so that the employee has full wage replacement through a combination of FAMLI and PTO. The total amount paid to the employee from PTO plus FAMLI may not exceed the employee’s average weekly wage. Note that if employees prefer to keep their earned PTO for later use and do not want to use it to “top off” their FAMLI benefit, they cannot be forced to do so.
How do FAMLI and FMLA interact?
FMLA is unpaid leave (applicable only to employers with 50+ employees) that is designed to run concurrently with FAMLI. If FAMLI leave is used for a reason that also qualifies as leave under FMLA, then the employee’s FAMLI leave also counts as FMLA leave. In other words, employers are not required to give an employee 12 weeks of paid FAMLI leave followed by another 12 weeks of unpaid FMLA leave.
How do FAMLI and Short-term/Long-term Disability/parental leave benefits interact?
Employers can require employees to use FAMLI leave as a condition for benefits the employer is not legally required to provide, like short-term disability, long-term disability or paid parental leave. Employers can require FAMLI leave to run concurrently with employer-provided short-term/long-term disability or paid parental leave benefits by providing advance written notice to employees of that requirement.
Which leave benefits are available to employees who are having a baby?
Employees giving birth may be able to use multiple forms of paid and unpaid leave, including FAMLI, FMLA, short-term disability, paid parental leave and/or PTO. If the employee experiences a medical condition such as a pregnancy complication or bed rest, they may also be able to use HFWA. Whether and how these forms of leave interact and can be run concurrently or consecutively will depend upon whether the employer has adopted a prior written policy on concurrent use of FMLA, short-term disability and paid parental leave, and whether the employer and employee have agreed on using PTO.
What leave benefits are available for employees who are non-birthing parents?
Non-birthing parents are eligible for FAMLI and FMLA and may also be eligible to take earned PTO or paid parental leave if offered by the employer.
What to do now:
- Companies should ensure compliance with the notice requirements of FAMLI by posting the required notice at each work site, updating the employee handbook and providing notice to all remote employees in the appropriate language.
- Companies should review their existing short-term disability, PTO and parental leave policies ASAP to determine whether and how to modify or adjust them.
If you have questions about the legality or efficacy of your company’s parental leave policies, need assistance updating them or are unsure how to legally manage a situation in your workplace, please contact an attorney.
– Chris Lamb is an employment attorney with over 30 years of experience advising companies on HR and personnel matters and defending them in employment lawsuits. As a co-founder of Fortis Law Partners, Chris regularly appears before agencies like the EEOC, Department of Labor, and CDLE.