Colorado’s New Family and Medical Leave Law Goes into Effect

January 3, 2024

By: Colin A. Walker

On January 1, 2024, Colorado’s new family and medical leave law, known as “FAMLI,” went into effect. Previously, starting on January 1, 2023, all Colorado employers were required to register with the FAMLI program, administered by a new Division of the Colorado Department of Labor and Employment (“CDLE”), the Division of Family and Medical Leave Insurance (“the Division”). Starting on that date, the state began withholding premiums from employee’s wages and employers were required to pay their premiums. However, the leave entitlement and wage replacement benefits did not take effect until January 1, 2024.  Now, FAMLI is in full force and effect and all Colorado employers will have to comply with it. There is no exception for small businesses. 

Unlike the federal Family and Medical Leave Act (“FMLA”), employees wishing to avail themselves of FAMLI benefits are to file an application with the Division. Hearing officers within the Division then make a determination as to whether the employee is entitled to benefits. If the employee disagrees with the decision, the employee may submit an appeal, which is decided by the Division. The employer may submit a “grievance” if it disagrees, under a separate rule. Thus, unlike the FMLA, employers are not responsible for determining eligibility, but they do have to comply with the decisions of the Division, subject to grievance rights. 

One of FAMLI’s benefits, is “wage replacement,” meaning that for up to 12 weeks, and up to 16 weeks for pregnancy-related healthcare conditions, employees receive a certain percentage of their wages during the leave. These payments are made by the Division from the premiums paid by employees and employers.  

There is also a private option. The private option must provide all the benefits required by FAMLI, under all the same terms and conditions. A number of insurance products are available. To comply, they must include a process for review of claims similar to the process of the Division described above. A private plan must be approved by the Division. 

Where the FMLA applies, FAMLI leave runs concurrently with FMLA. However, the entitlement to leave is not the same. For instance, FAMLI allows “safe leave,” leave related to domestic violence, but the FMLA does not. In such cases, it is possible for an employee to receive FAMLI leave and leave under the FMLA. For example, if an employee takes safe leave, which is not recognized by the FMLA, and then has a serious healthcare issue, which is recognized by the FMLA, the employee would be able to take up to 12 weeks of FAMLI leave for safe leave and up to 12 additional weeks of FMLA leave for the healthcare condition. 

As with most employment laws, employers are prohibited from discriminating or retaliating against employees for exercising their rights under FAMLI. Employees who were employed for 180 days or more prior to the leave are entitled to reinstatement. Employers must continue benefits during leave. The Division is empowered to enforce FAMLI and there is a private right of action for employees, which includes damages and an award of attorneys’ fees to a prevailing plaintiff.

FAMLI requires employers to provide employees with notice of their rights similar to the posting requirements of other employment laws. 

Employers should review their policies, practices and procedures, as well as materials provided by the Division, and should consult with employment counsel to ensure that they are prepared to comply with FAMLI. The Division’s website contains helpful information and should be carefully reviewed here.