Colorado Family and Medical Leave Insurance (COFAMLI) - Legislative Guidance

Table of Contents

Overview

Colorado Family and Medical Leave Insurance (COFAMLI) provides eligible employees with wage replacement and job protection for up to 12 weeks in an application period to care for employee’s or family member’s serious health condition, qualifying exigency, bonding, or safe leave. An employee may be eligible for up to 16 weeks for certain pregnancy situations. If the employee has been employed by the employer for at least 180 days, the employee has job protection.

COFAMLI is a state-administered program that is funded through employee and employer contributions. Decisions on approval for benefit payment is determined by the state, unless the employer has an approved equivalent plan. While almost all Colorado employers must participate in the COFAMLI program, they have the option to offer an equivalent plan. Equivalent plans must provide equal or greater benefits than the state program and must be approved by the Colorado FAMLI Division(The Division).

AbsenceSoft Policies

Colorado Family and Medical Leave Insurance is configured in AbsenceSoft with four policies to track eligibility for job protection and approval for state administered wage replacement the policy codes and naming are listed below:

• Colorado Family and Medical Leave CO-FAMLI-JP

• Colorado Family and Medical Leave CO-FAMLI-PL

• Colorado Family and Medical Leave CO-NICU-PL

• Colorado Family and Medical Leave CO-NICU-JP

Legislation codes and statues

The information presented in the guidance relates to the following legislative codes, links to the specific legislation can be found within the ‘Resources’ section of this document.:

• Colorado Revised Statues Title 8 sections 8-13.3.501 et seq. (Colo. Rev. Stat. §8-13.3-501)

• Colorado Revised Statues Title 8 sections 8-13.3-301 to 305 (Colo. Rev. Stat. §8-13.3-301 to §8-13.3-305)

• Colorado Code of Regulations Title 7, sections 1107-1

Employer Coverage

Most all employers in Colorado who have at least one or more employees (including any remote workers), measured over 20 calendar workweeks in the preceding calendar year, and paid a certain amount in wages to any employee in any quarter of the preceding calendar year, are considered covered employers. Additionally, small businesses with 9 or fewer employees(including remote workers) are still covered employers, but do not have to submit employer contributions.

Employers must have paid at least a certain amount of wages during any quarter in the previous calendar year. Wage amount required may fluctuate based on the state’s requirements. Employers should review the amount each year to ensure the threshold does not change.

There are some exceptions noted below:

Exclusions:

• Federal Employers

• Local government employers may opt-out

Employee Eligibility

An employee is considered eligible for job-protection so long as they are employed with their employer for at least 180 days, before taking leave for continuous leaves.

Intermittent or reduced schedule leaves, eligibility should also consider any work days between instances of leave toward meeting the 180 day eligibility requirement.

For wage replacement, the employee must work for a covered employer, or opted into the FAMLI program, and make a certain amount within a base period determined by the state.

The wages earned come from any covered employer the employee has worked for in the base period. The amount the employee must earn may change from year to year as determined by the Division.

Exclusions:

• Independent contractors may opt-in

• Self-employed may opt-in so long as they are a Colorado resident

• Local Government employees may opt-in even if their employer has opted out

• Railroad workers part of the Railroad Unemployment Act

Qualifying Absence Reasons and Leave Duration

The employee may receive a total of up to 12 workweeks of job-protected/wage replacement benefits in an application year which begins the first day of the calendar week the employee files for COFAMLI benefits.

For pregnancy, the employee may receive at total of up to 16 workweeks of job-protected(where applicable)/wage replacement benefits in an application year, if there are pre or post-birth complications.

If an employee’s child is placed in the Neonatal Intensive Care Unit (NICU), the employee may receive up to 12 additional weeks as long as the child remains in NICU. The maximum entitlement for NICU care plus another absence reason (except Pregnancy/Maternity) is 24 weeks. If NICU is combined with Pregnancy/Maternity complications, the maximum can be up to 28 workweeks.

Family Leave

• Adoption/Foster Care: Care for and bond with a child during the first year after placement through adoption or foster care.

• Bonding: Care for and bond with a new child during the first year after birth.

• Family Health Condition: Care for a family member with a serious health condition.

• Neonatal Intensive Care Unit (NICU): when a child is placed in NICU care following the birth of a child, which may include an adopted child or foster care child.

Medical Care

• Employee Health Condition: Care for the employee’s own serious health condition.

• Pregnancy/Maternity: Pregnancy disability, and/or pregnancy or childbirth complications.

Military

• Qualifying Exigency: Employee is attending to matters resulting from the service member’s active duty deployment in a federal or state branch of the U.S. Military. Factors include financial, legal or childcare planning, counseling services, military events/ceremonies, visitation during rest and recuperation, attending to matters related to the death of the servicemember, or addressing care needs of the servicemember’s family members.

Safe Leave/Domestic Violence

• Safe Leave/Domestic Violence: relocate, securing safety of home, obtain medical or psychological services, attend civil or criminal proceedings, or seeking civil protections associated with family violence, stalking, or sexual assault.

Qualifying Family Member¹

• Spouse

• Domestic partner

• Sibling

• Child (any age*, grandchild, stepchild, adopted child, foster child, legal ward, child of domestic partner, in loco parentis)

• Parent (including in-laws, step parents, adopted or foster parents, in loco parentis, legal guardian, or domestic partner’s parent)

• Grandparent

• Any individual who the employee deems has a close relationship that could be considered a family member

How Leave Can be Taken

Employees may take leave consecutively, intermittently, or reduced schedule for any qualifying reason.

• Consecutive leave: A continuous, uninterrupted period of leave taken for a single qualifying reason.

• Intermittent leave: Leave taken in separate, sometimes unpredictable, blocks of time (either hours, days or weeks) between the start and end dates of leave.

• Reduced schedule: A reduction to the employees’ work schedule that results in either fewer hours per day or fewer days per week. A reduced schedule is consistent from one week to the next.

Certification Requirements

The Division will provide the employee with any necessary forms, verifications, or certifications the employee may need. Forms are available to the employee once they file a claim.

The Division requires employers to create an account to manage employee claims. Employers will be notified via the state’s portal on claim decisions or may have requests for additional information from The Division. Additionally, employers may also create an appeals account to review any employee claims that are in an appeals process to respond, and see determinations when applicable.

Pay and Benefits

Where state pay benefits are involved with other law interactions, such as state mandated sick pay, employers will want to consider where PTO/employer pay benefit application should occur. There is no waiting period for benefits.

Amount of Pay

COFAMLI pays a weekly benefit amount that is determined by comparing the employee’s average weekly wage to the state’s average weekly wage. Benefits are calculated on a sliding scale, with lower-income employees generally receiving more of their usual wages compared to higher-income employees. Minimum and maximum weekly benefit amounts are based on the state average weekly wage. The state may increase the average weekly wage amount year over year or maximum payment allowed under the plan. Employers should monitor the state website for updates in determining top-off calculations.

Use of Paid Time Off (PTO)

Employers cannot require an employee to use the accrual-based benefits. If employees elect to use PTO, the employee and employer must sign an agreement indicating the use is to top-off benefits only.

Employer sponsored paid leave programs such as short-term or paid parental benefits can run concurrently with FAMLI. If the employer wishes to top-off their benefit offering with COFAMLI benefit, this must be in writing and agreed upon by the employee and employer. The agreement remains valid for future use unless the employee revokes the agreement.
Employers cannot require an employee to use the COFAMLI leave benefits prior to payment of an employer sponsored paid leave benefit, and employees need to be notified in writing that the employer plans when plans run concurrently. Employers will need to follow the terms of its policy on who (employer or employee) will need to verify with the state when employer sponsored programs are being utilized at the same time as COFAMLI.

Job Protection

Employees with 180 days of employment with their employer have the right to return to the same or equivalent position at the end of the COFAMLI period. The equivalent position must provide the same terms of employment (job location, hours, shift), base pay, and benefits.

Other Protections

Employees are protected from retaliation and interference in the right to request or receive COFAMLI benefits.

Benefits

An employer is required to continue health benefits in the same manner it does for other employees who are on leave. An employer may require an employee to continue their share of health insurance premiums.

Interaction with Other Laws

Where an employee meets the definition of family member, qualifying absence reason, or serious health condition, the state and federal laws may interact. Accommodations that are not leave related, would not run concurrently with other state or federal leave laws.  

Family and Medical Leave Act (FMLA)

COFAMLI may run concurrently with FMLA when the same reasons and family members align with the FMLA regulations.

Colorado Pregnancy Disability Leave (COPDL)

COPDL may run concurrently with COFAMLI when the employee is missing work versus on the job accommodations.

Colorado Victims of Domestic Abuse, Sexual Assault, Stalking (CODOM)

CODOM may run concurrently with COFAMLI when the same reasons and family members align with the CODOM regulations.

Workers’ compensation

Workers’ compensation benefits for lost time does not run concurrently with COFAMLI. Employees will be prompted to answer questions during intake on if they are receiving Worker’s Compensation benefits.

Unemployment

Unemployment benefits do not run concurrently with COFAMLI.

Employee and Employer Responsibilities

Employee Responsibilities

• Initiate claim using the COFAMLI website;

• Provide 30 days advance notice to employer when leave is foreseeable or as soon as practicable for emergency situations;

• Return all requested documentation to The Division;

• Determine accrual based employer policy usage;

• Contact employer and Division when intermittent leave is used;

• Follow employer policies and procedures for time off reporting.

Employer Responsibilities

• Posting requirements are as follows and all posters must be a place that is conspicuous/frequented by employees:

  • Provide written notice at the time of hire and when the employee requests leave that may qualify for COFAMLI or Federal FMLA benefits.

  • Notices must be provided in writing within 5 days of the employee’s qualifying request, the state offers a notice on the COFAMLI website;

• Register/create account for COFAMLI and the FAMLI appeals portal;

• Withhold and send employee contributions;

• Maintain payroll records, such as top off amounts, and payroll notices to employees on contribution amounts;

• Respond to inquiries from the state;

• Create written agreement when the employee elects to use employer accrual based policies such as PTO; and

• Notify employee in writing when employer sponsored paid leave benefits will run concurrently with COFAMLI.

Resources

Colorado Legislation: Colorado Revised Statues(CRS) and Colorado Code of Regulations(CCR)

Colorado FAMLI website: https://famli.colorado.gov/

^{1 CRS 8-13.3-503 11a-e}

^{2 CCR 7 1107-3 (7)(B-C)}