Policy and law questions
1. Does the 180-day eligibility requirement under CO-FAMLI-JP include leave taken for military service?
Colorado FAMIL requires employees to be employed with their current employer for at least 180 days before leave begins. Like the FMLA, leave taken under the Uniformed Services Employment and Reemployment Rights Act (USERRA) counts as time worked toward the 180-day requirement. This rule uses the employee's service date to evaluate tenure with the employer. See further details below for eligibility requirements related to job protection.
https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=11234&fileName=7%20CCR%201107-7
2. Can an employer require an employee to file for FAMLI benefits?
No, the employee will need to file for benefits or provide a designated representative if the employee is otherwise unable to file a claim.
Employers can, however, indicate that as a condition of receiving employer paid benefits such as short-term or long-term disability programs that an employee file for FAMLI benefits. It is important to note that the law does not include employer PTO or other accrued benefits in this stipulation.
Colorado FAMLI regs - see section 8-13.3-510 Coordination of Benefits section 1b
3. Why is the Colorado FAMLI policy configured to end after 12 months from delivery date/ adoption date for bonding, adoption, or preg/mat reasons when the application year is on a rolling forward method?
Configuration on adoption, preg/mat, and bonding cases follows the law in defining what timeframe an employee may bond with a newly adopted or birthed child. An application year is similar to the 'measurement period' under FMLA. The application period allows an employee to be eligible for FAMLI benefits for that defined period, so that when an employee has multiple qualifying absence reasons their application year determines the entitlement amount available either 12 weeks per or with pregnancy complications 16 weeks is available in a 12 month period rolling forward from the first date of leave.
The regulations also state that an employee must take leave for bonding within 12 months from the delivery or adoption date of the child so that an employee can't extend their bonding entitlement with a child over years. For example, an employee can't claim bonding time 3 years after the baby was born.
4. Does Colorado FAMLI have to be measured on a rolling forward basis?
Yes. The regulations indicate the benefit or application year is measured on a rolling forward basis. Employers do not have a choice as to which method they would prefer to use even within a private plan. Please see the linked item for the regulations, section 3.2 Definitions (2).
6. How much entitlement is available for CO-FAMLI? The configuration today has two policies the CO-FAMLI and the CO-FAMLI-JP which is allowing for 24 weeks of leave, is that the intent?
No, the regulations have a separate consideration of job protection vs wage replacement benefits, but the entitlement is not separate. An employer has information to apply the job protection, where the state does not. The job protection will only apply if/when the employee is also receiving CO-FAMLI benefits/wage replacement. As CO-FAMLI is administered by the state, benefits are determined at the state level and employers should use that guidance to apply the CO-FAMLI-JP, after the employer has reviewed the eligibility requirements for the job protection piece.
The intent of two policies if based on different eligibility requirements an employee must meet to receive wage/replacement benefits and those that must be met to receive job protection while the employee is receiving wage replacement benefits.
7. Is CO-FAMLI benefit payment based on a work week or something else?
The payment of benefits is subject to the employee's work schedule and payments may be adjusted by the CO-FAMLI division based on changes to the employee's work schedule. The Division will not suspend payments if the employee resigns, terminates, or the employer has a period of shut down such as an academic break, or if their position has been suspended.
Intermittent leave is based upon how many hours or days the employee may miss from their work schedule. For intermittent leaves, payments will only be made if the employee misses 8 hours.
Reduced schedule is also paid based on the missed hours of work the employee has with the reduced schedule.
Below is an excerpt from the Colorado Code of Regulations 7 Colo. Code Regs. § 1107-3.5.6.:
The Division will recalculate wage replacement benefit awards for in-progress awards of paid
family and medical leave if the state average weekly wage changes, a change in regular work
schedule triggers a recalculation in accordance with these rules, or the outcome of an appeal
results in a change in awarded benefits. If the recalculation increases or decreases the wage
replacement benefit amount, the Division will notify the covered individual and will adjust future
payments accordingly. If the covered individual's employer has made a valid request for benefit
amounts in accordance with Section 3.8.9 of these rules, the Division will notify the employer of
any increases or decreases in the covered individual's wage replacement benefit amount.
8. Why isn't CO-NICU configured to support Family Health Condition when the regulations indicate the FAMLI program is treating it as such?
AbsenceSoft's approach was to create the least amount of friction in case management while still providing correct CO-FAMLI entitlements.
The approach was to consider how and when NICU care would enter the case for the majority of situations. NICU care is not typically known until after the delivery of the child.
A case would be opened as Bonding or Adoption/Foster(for non-birth parent) or Pregnancy/Maternity(for birthing parent) to manage when a pregnancy or placement is known by the employee. To limit multiple cases to track one event and potentially confusing the employee with multiple communications surrounding the event, only BONDING, PREG/MAT, and ADOPT/FOSTER CARE were configured.
Using the above absence reasons for NICU, provide flexibility for clients to manage other benefit offerings such as Short-term disability or Parental Leave top-offs that may continue to run as the employee is recovering from childbirth or the employer considers as bonding time with the child, while in NICU care.
Clients may customize the configuration to add FHC to meet the needs of their organization.
9. Does CO-FAMLI-NICU apply to babies born prior to the effective date of the law change (1/1/2026)?
NICU care can apply to a child even though they were born prior to the law's effective date, if the child is in NICU January 1, 2026 or after.
This is noted in the Colorado Administrative Code as to how the state will determine awarding benefits:
"Neonatal care leave" means a separate and distinct leave entitlement under C.R.S. § 8-13.3-
505(1)(b) that provides up to twelve (12) additional weeks of paid family and medical leave
benefits to a covered individual who is providing care for their infant receiving inpatient treatment
in a neonatal intensive care unit. The leave is available only for the duration that the infant
remains admitted to a neonatal intensive care unit. The leave is available for qualifying absences
from work on or after January 1, 2026, and neither the fact that an infant was receiving inpatient
treatment in a neonatal intensive care unit prior to that date, nor the fact that a covered individual
took FAMLI leave to care for that infant prior to that date, precludes an award of neonatal care
leave." 7 CCR 1107-3 (17)