CDLE Publishes FAMLI Program Regulations

October 21, 2022

In 2020, Colorado enacted the Family and Medical Leave Insurance Program (FAMLI), which provides paid leave to employees in essentially the same circumstances as those under the federal Family and Medical Leave Act. The FAMLI Division (within the Colorado Department of Labor and Employment) has adopted regulations on premiums and benefits and is working on rules relating to private plans. The regulations and other resources provided by the Division are linked below.

Leave benefits under FAMLI are not available until January 1, 2024. But effective January 1, 2023, employers must begin remitting the payroll tax that funds the program. The program will be administered by the state. Workers on FAMLI leave will receive their payments directly from the state, not from the employer. Employees on FAMLI leave will receive partial wage replacement and the amount will depend on their earnings. The benefit is calculated on a sliding scale, based on the employee’s average weekly wage. For 2024, the weekly benefit is capped at $1,100. After 2024, the maximum weekly benefit will be 90% of the state average weekly wage.

Under FAMLI, employers with at least one employee in Colorado must provide paid leave to eligible employees. Employees covered by the FAMLI program will be entitled to take paid leave for any of the following reasons:

To care for a child following birth, adoption, or foster care placement;

To care for a family member with a serious health condition;

To care for the employee’s serious health condition;

To take “qualifying exigency leave” due to a family member's active-duty service or call to active duty;

To take “safe leave” because the employee or a family member is the victim of domestic violence, stalking, sexual assault, or abuse.

Employees can take up to 12 weeks of paid leave. However, an employee can take an additional four weeks if needed due to complications related to pregnancy or childbirth.

The Division has published its Regulations Concerning Benefits and Employer Participation Requirements, providing information on numerous aspects of the program. Those regulations are here. Among others, the following topics are addressed.

Qualifying for Benefits

Employer Participation Requirements

Applying for Benefits

Notice to Employer

Employer Grievance Process

Employee Appeal Process

Fitness for Duty Certification

Beginning January 1, 2023, a 0.9% payroll tax goes into effect for all Colorado employees, to be remitted quarterly. Employer and employee is each responsible for half of the tax (0.45%). Employers have the option of paying the full amount, as an additional benefit of employment. Employers with fewer than ten employees are not required to pay the employer share of the premiums, nor are self-employed workers who elect to participate in the program. Taxable wages for the FAMLI program are capped at the same level as the social security tax and will change from year to year. The regulations regarding premiums (the tax) are here.

Employers can choose to use a private family and medical leave plan instead of the FAMLI program. The private plan must provide at least the same rights, protections, and benefits as the state program, and employees cannot be required to contribute more to the private plan than they would have to contribute to the FAMLI program. Private plans must be approved by the Division. Employers wanting to utilize a private plan must apply to the FAMLI Division for a private plan exemption by October 31, 2023.

All employers are required to register with My FAMLI+ Employer (similar to registering with My UI Employer) before the first premium payments and wage reports are due. Note that even employers that intend to implement a private plan must collect and remit premiums under the FAMLI program beginning January 1, 2023. However, they can receive a refund of the premiums if the Division approves a proposed private plan with an effective date on or before January 1, 2024.

Final rules regarding private plans have not been adopted and the Division’s current guidance is subject to change. Nevertheless, the Division posted a webinar specifically discussing how employers can meet the requirements of FAMLI through a private plan. The webinar is here.

For Colorado employers, the FAMLI program is the latest addition to a growing list of federal and state leave laws. The Division has drafted proposed rules regarding coordinating FAMLI leave with other leave laws, as well as short-term and long-term disability plans. Those proposed rules are here.

The Division created an informational poster that employers are required to post in a prominent location in the workplace. Employers must also notify employees of the program, in writing, upon hiring an upon learning of an event that would qualify an employee for FAMLI leave. You can find the poster in the Toolkit for Employers here.

This article is only an overview of the program. Employers need to become well-acquainted with the requirements of the FAMLI program and how it will be administered. In addition to the regulations and resources linked above, you can find additional information and resources on the CDLE website here.