Could Colorado employees be entitled to take up to 24 weeks of job-protected leave every 12 months? Yes, in some circumstances, if the bill recently passed by the Colorado House of Representatives and progressing through the Senate is signed into law. Although greatly downsized from its original form, House Bill 1222 expands the group of family members for whom Colorado employees are entitled to take leave from work under the federal Family and Medical Leave Act (FMLA) to include care for civil union partners and domestic partners. In certain circumstances, this expansion could result in an employee being entitled to 24 weeks of FMLA leave in a given year. Let’s look at what the bill provides.
Leave to Care for Civil Union and Domestic Partners
Colorado employees currently must look to the federal FMLA for job-protected leave benefits. Federal FMLA provides an eligible employee up to 12 weeks of leave during a 12-month period to care for a spouse, child or parent who has a serious health condition. The federal FMLA, however, does not permit leave for an employee to care for his or her civil union partner or domestic partner. If signed into law, House bill 1222, called the Family Care Act, would allow an eligible employee to take leave to care for the employee’s partner in a civil union or the employee’s domestic partner (if the employer recognizes the person as the employee’s domestic partner or the domestic partnership is registered with the municipality or the state, as applicable). The employer would be permitted to require the employee to provide reasonable documentation or a written statement of the family relationship, in accordance with the FMLA. The employer also would be allowed to require the same medical certification as may be required under the FMLA.
“Double Dipping” of FMLA Leave
The bill states that FMLA leave taken by an employee under this new law would run concurrently with leave taken under the FMLA and that the new law would not increase the total amount of leave to which an employee is entitled during a 12-month period. This seems to suggest that “double dipping” would not be permitted. However, federal regulations provide that the FMLA does not supersede any state law that provides greater leave rights than those provided by the FMLA. Further, the regulations state that if state law provides for a certain amount of leave, which may include leave to care for a seriously-ill “spouse equivalent,” and leave was used for that purpose, the employee is still entitled to his or her full FMLA leave entitlement, as the leave used under state law was provided for a purpose not covered by the FMLA. 29 C.F.R. § 825.701(a)(3). On the other hand, if FMLA leave is used first for a purpose that is permitted under both state and federal law and state leave has thereby been exhausted, the employer would not be required to provide any additional leave to care for the “spouse equivalent” during that 12-month period.
What does this mean? It means that the order of state vs. federal leave matters. If leave to care for a seriously-ill civil union partner under state law is requested first, the employee potentially may “double dip” if he or she subsequently requests leave provided under the federal law. This could lead to a total of 24 weeks of leave in a single 12-month period. However, if leave that qualifies under the federal FMLA occurs first and the employee takes the full 12 weeks of leave at that time, no leave is available should the employee need to care for his or her civil union partner or domestic partner under state law.
Next Legislative Steps
Having passed the Colorado House, the Family Care Act moved to the Colorado Senate where it has passed unamended on second reading. The Senate needs to pass the bill on third reading to be sent to Governor John Hickenlooper to be signed into law or vetoed. Rest assured that we will continue to monitor this bill and will pass along updates as warranted.
