Dana Dobbins
By Dana Dobbins
In Colorado, beginning on January 1, 2024, eligible employees can take paid leave for a variety of circumstances under Colorado’s Family and Medical Leave Insurance (FAMLI) program. Given that the FAMLI program is still in its infancy, there are several ambiguities and issues that still need to be resolved, and employers are still adjusting their policies.
One of the pitfalls facing employers is that they have not updated employment handbooks or policies to clarify that any paid parental leave otherwise offered under company policy runs concurrently with FAMLI leave (in addition to running concurrently with FMLA leave), not in addition to those leaves. Failing to update those policies may leave the employer in a situation where an employee can take 24 or more weeks of leave, and there is little the employer can do to prevent it without running afoul of the law. For most employers, this extended duration of leave is simply not feasible. Thus, updating relevant handbook or policy provisions is key.
Indeed, the statute expressly provides that “an employer may require that payment made or paid family and medical leave taken . . . be made or taken concurrently or otherwise coordinated with payment made or leave allowed under the terms of a disability policy, including a disability policy contained within an employment contract, or a separate bank of time off solely for the purpose of paid family and medical leave…, as applicable.” C.R.S. § 8-13.3-510(1)(b).
It is not enough to simply state that the statute allows concurrency. Nor is it enough to point to the fact that an existing policy provides that parental leave runs concurrently with FMLA leave and hope that, because FMLA and FAMLI run concurrently, all bases are covered. Instead your policy must expressly state or require that paid parental leave (and FMLA leave) runs concurrently with FAMLI.
Some employers believe that they need not offer or mention FAMLI leave because their parental leave policy is more generous than that provided by FAMLI. Again, this can result in a situation where an employee takes the company provided paid parental leave, and then extends that leave or takes additional leave under the FAMLI program. The FAMLI Compliance Division of the CDLE has reiterated that FAMLI runs concurrently only if (1) the employer requires it; and (2) the employer has given advance written notice of this requirement to employees before enforcing it.
Finally, ensure that your Human Resource team, third party benefits administrator, or whoever is responsible for administering leave appropriately designates paid parental leave as FAMLI leave. Otherwise, you may find yourself in an avoidable situation where the CDLE rules that your employee is entitled to additional 12 weeks of leave (or 16 depending on the circumstances), even where the employee has already taken paid maternity leave pursuant to company policy.
