Colorado Family Care Act Creates Confusion with FMLA Compliance for Employers

Colorado Family Care Act Created to Expand FMLA Rules

The Colorado Family Care Act (FCA) was signed into law on May 3, 2013 by Governor Hickenlooper. The law was created under the premise that the State of Colorado legislators wanted to create additional coverage for employees above that which was provided by the Federal Family and Medical Leave Act (FMLA).

However, there are some issues with any state that attempts to modify federal law and many employers have been confused as to how the FCA corresponds or overlaps with the Federal FMLA laws. The purpose of this article is to provide a guide to the Colorado Family Care Act and how it relates to FMLA.

In recent years, several states including New York, Rhode Island, Minnesota, Oregon, and others, have enacted either paid or unpaid family leave acts.

Often these acts spell out additional leave time that is available to employees above what is provided in the Family Medical Care Act (FMLA).

Colorado is not typically listed as a state that is considered to have it’s own Family or Medical protected leave, yet, as this article shows, state law does provide additional protected leave for employees.  

Family and Medical Leave Act Provisions for Colorado Employees

FMLA was created in 1993 to  provide up to 12, and in some cases 26 weeks of unpaid protected leave to employees of large employers across the United States. To be eligible for FMLA, employers and employees must been several qualifications.

First, the employee must work at a company that has 50 or more employees within a 75 mile radius.

Secondly, the employee must have worked for the employer for at least 12 months, although it doesn’t have to be a consecutive 12 month period.

Lastly the employee must have worked at least 1,250 hour for the employer within the previous 12 months. In addition all government agencies and private and public elementary and secondary schools are included, regardless of the number of employees the agency or school employers.

• Any Government agency and any private or public elementary or secondary school
• Employers with 50 employees within a 75 mile radius
• Employees who have worked at least 12 months for the qualified employer and
• Employees who have worked at least 1,250 hours in the preceding 12 months to the leave.

Leave Reasons for FMLA

Under FMLA, employees can take leave for several reasons.

First they can take leave when the employee is unable to perform their work duties due to a serious illness or injury. They can also take leave when an allowed family member has a serious injury or illness so that they can care for their family member.

Third employees can take leave to bond with a new child, either through birth, adoption or placement via foster care into the employee’s home.

Fourth employees can take FMLA when a qualifying family member is called into active duty with the military.

Lastly, FMLA provides up to 26 weeks of leave for employees to care for a services member who has a serious injury or illness

• Bonding with a new child within first 12 months of birth, adoption or foster care placement
• Care for qualified family member who has a serious illness or injury
• Care for themselves due to a serious illness or injury.

Because FMLA can be taken in as little as partial days off and can be taken for an employee’s own serious health condition, illness or injury, FMLA provides a sort of protected sick leave for serious illnesses and injuries.

Qualified Family Members Under FMLA

FMLA leave applies to specific family members which include children, parents and spouses. FMLA acknowledges biological, adopted, foster, and step relationships.

In the case of parents or children, it also acknowledges in loco parentis relationships. In loco parentis relationships are relationships where an individual has the daily responsibility to financially support a child.

Children are included in FMLA leave if the child is under the age of 18 or is over 18, but is unable to care for themselves due to a mental or physical disability.

Parents include all of the previously named relationships, including individuals who stood as in loco parentis relationships to the employee when the employee was a minor. Parents do not include in-law parents.

Spouses are included if they live in a state and are legally married. With the legalization of same-sex marriage in 2015, FMLA now covers same-sex marriages as well. Next of kin is also an allowed family relationship when a military member has a serious injury or illness and has none of the other specified family relationships.

• Parents
• Children under 18, unless the child is incapable of self-care
• Spouses

Expanding FMLA under Colorado’s Family Care Act

When Colorado legislatures passed the FCA, they attempted to expand the scope of FMLA by expanding the definition of allowed family member relationships for employee to take under a protected 12 week leave.

Employees who are eligible for FCA leave must also be eligible for FMLA leave, therefore they  must meet all of the qualifications of FMLA.

Expanded Family Relationships under FCA

Colorado’s FCA expands the family relationships that employees can take 12 weeks of leave. Those relationships include “a person to whom the employee is related by blood, adoption, legal custody, marriage, or civil union or with whom the employee resides and is in a committed relationship with.”  

This expands allowed relationships to include children over the age of 18, domestic partners, grandparents, grandchildren, siblings, and in-law relationships.

• Children- of any age
• Parents-In-Law
• Domestic Partners
• Siblings
• Grandchildren
• Grandparents

The reasons for taking the 12 weeks of leave are listed as being the same as under FMLA law.

Implications for Employers in Colorado seeking Compliance with FMLA and FCA

Initially, the FCA looks like a genuine effort to expand FMLA coverage to Colorado employees. Although the FCA specifically states that the act is “concerning the expansion” of family member relationship that Colorado employees can take “leave from work under the Federal Family and Medical leave Act”, there are some legal issues to the FCA.

First, FCA states that “in addition to the leave to which an employee is entitled under the FMLA” and then uses language that seeks to expand coverage of FMLA.

However, that is a major problem as a state law has no authority to expand federal law. Simply stated, state law cannot alter or adjust federal law. Federal law is considered the supreme law of the land.

In addition, the Department of Labor states that “nothing in FMLA supersedes any provision of state or local law that provides greater family or medical leave rights than those provided by the FMLA.”

In other words, the Family Care Act of Colorado doesn’t actually expand Federal FMLA, but creates additional leave for employees covered by FMLA.

For example, an employee who takes 12 weeks of protected leave to care for a sibling would be covered under FCA.

However, regardless of how FCA is written, the employer cannot count those 12 weeks toward FMLA because siblings are not covered under FMLA law. If the employee then wants to take 12 weeks to care for a parent under FMLA provisions, they are still entitled to that leave. If the employer denies the second request for leave, then the employee has full rights under FMLA law to seek redress through the Department of Labor.

Thus, employees covered under FMLA can actually have coverage to 24 weeks of protected care in Colorado.

Employers cannot count leave concurrently for both FMLA and FCA unless the first 12 weeks of leave taken falls under both laws. If an employee takes 12 weeks of leave to care for a spouse with a serious health condition, their employer could count the leave as running concurrently for both FMLA and FCA because both leaves allow for that family relationship and leave reasons.

Compliance Steps for Employers

This means that employers should make sure that documents and employment guidelines clearly distinguish between FMLA and FCA leave. When employees take leave, Human Resources personnel should clarify the family member relationships for which leave is being taken.

If leave is only covered under the Colorado FCA, then all documents related to the leave should avoid containing any verbiage regarding FMLA leave and should only reference FCA leave.

When leave counts toward FMLA and also falls under FCA, specify in the leave documents that leave is being taken concurrently.

Only by distinctly defining the types of leave being taken can employers ensure that both HR the employees understand the leave being taken and are following the applicable laws. In addition, leave should be tracked and records maintained of the leave to protect against the event of employee disputes or complaints.

Let SwipeClock Help

One of the best ways to maintain records and ensure compliance is through SwipeClock’s comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws.

Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

Resources

Colorado Family Care Act

The legal effects of the FCA

Family and Medical Care Act

Written by Annemaria Duran. Last updated on May 26, 2017