The federal Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, provides an eligible employee with up to 12 weeks of unpaid leave in any 12-month period after the birth or adoption of a child. In addition to the federal leave requirements, some states have enacted their own family and medical leave laws.
Effective Aug. 7, 2013, the Colorado Family Care Act expands the federal FMLA protections for employees in Colorado, and applies toall employers who are subject to the FMLA. The Family Care Act provides employees in a civil union or domestic partnership the right to take a leave from work to care for the employee’s partner with a serious health condition.
An employee is eligible for leave under the Family Care Act if he or she is eligible for federal FMLA leave and is either:
- In a civil union under Colorado law;
- In a domestic partnership that is registered in the municipality in which the person resides or with the state (currently, Denver and Boulder have domestic partnership registries); or
- In a domestic partnership recognized by the employee’s employer.
The partners can be of the same or different sex.
An employee is eligible for FMLA leave if he or she:
- Worked for the employer for at least 12 months (which need not be consecutive);
- Has worked at least 1,250 hours for the employer during the 12-month period immediately before the leave; and
- Is employed at a location where the employer has at least 50 employees within a 75-mile radius.
The FMLA applies only to employees who are employed within the United States or any territory or possession of the United States.
An eligible employee may take up to 12 weeks of unpaid leave in a 12-month period to care for a civil union or domestic partner with a serious health condition.
The Family Care Act adopts the FMLA definition of a “serious health condition.” Under the FMLA, a “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.
The employer may require the employee to provide reasonable documentation of the employee’s relationship with the civil union or domestic partner. Documentation can be in the form of a written statement of family relationship from the employee.
An employer may also require an employee seeking FMLA leave to care for his or her partner with a serious health condition to submit the same health care provider certification as the employer requires under the federal FMLA.
Relationship to Federal Law
The FMLA does not include civil unions or domestic partners as covered relationships for which leave can be taken. Still, the Family Care Act adopts many of the definitions and parameters set forth in the federal FMLA, including rules regarding:
- Employee eligibility;
- Covered employers;
- Leave amount;
- Leave usage; and
- Enforcement, including employer penalties for violations.
The Family Care Act states that leave must run concurrently with federal FMLA leave, and that the Family Care Act does not increase the amount of leave to which an employee is entitled. However, state law cannot deny an employee his or her FMLA rights by counting toward FMLA leave usage the employee’s time off to care for a person in a relationship that is not covered by the FMLA (for example, a civil union or domestic partnership).
As a result, an employee who takes leave under the Family Care Act may also be eligible for an additional 12 weeks of leave under the FMLA. However, the sequence of leaves taken will determine whether an employee may take advantage of this second opportunity for leave.
- If an employee first takes leave in a leave year for a reason that qualifies under the federal FMLA, that time will count toward the Colorado entitlement as well and the employee will not be entitled to additional leave under Colorado law during that same leave year.
- If the employee first takes leave under the Family Care Act to care for a civil union or domestic partner, that time cannot be counted against his or her FMLA entitlement.
Actions for Employers
Beginning on Aug. 7, 2013, Colorado employers will be required to comply with the Family Care Act. Employers can prepare for this compliance deadline by:
- Updating employee leave policies and employee handbooks to reflect this new leave entitlement;
- Training management and other personnel on how to handle these types of leaves; and
- Communicating the new leave entitlement to Colorado employees.