7 Colo. Code Regs. § 1107-3.4

Current through Register Vol. 47, No. 24, December 25, 2024

Section 7 CCR 1107-3.4 - Clarifications Regarding Use of Paid Family and Medical Leave Insurance Benefits

1. The use of paid family and medical leave insurance benefits is restricted to absences caused by a qualifying condition described at C.R.S. § 8-13.3-504(2). If the absence is caused by a reason other than a qualifying condition described at C.R.S. § 8-13.3-504(2), paid family and medical leave insurance benefits are not available.

A. If a covered individual is awarded continuous leave for an absence caused by a qualifying condition described at C.R.S. § 8-13.3-504(2), the awarded leave is not impacted by a subsequent separation from employment, except when the individual receives unemployment benefits in accordance with 7 CCR 1107-4, Section 4.4, or when the Division determines that the individual is ineligible for benefits in accordance with the FAMLI Act and its implementing regulations, in either which case the benefits award ends.

B. If a covered individual is awarded intermittent leave or reduced leave schedule for an absence caused by a qualifying condition described at C.R.S. § 8-13.3-504(2), and subsequently becomes unemployed or changes employers, the awarded leave terminates upon unemployment or the change in employment, and the covered individual may apply for benefits upon reemployment. An individual becomes unemployed within the meaning of this rule if they are terminated, they resign, or no work is available to them due to a cessation in operations, the end of seasonal employment, the end of a temporary work assignment, or any other reason that causes the cessation of available work.

2. For purposes of determining the amount of leave used by an employee, the fact that a holiday may occur within a period of continuous leave has no effect; the time is counted as FAMLI leave and the employee will receive wage replacement benefits for that time. However, if an employee is using FAMLI leave in the form of intermittent leave or reduced leave schedule, the holiday will not count against the employee's FAMLI entitlement-and the employee will not receive wage replacement benefits for the holiday-unless the employee was otherwise scheduled and expected to work during the holiday. Similarly, if for some reason the employer's business activity or the employee's position have temporarily ceased and the employee is not expected to report for work for one or more weeks, the days the employer's activities or the employee's position have ceased do not count against the employee's FAMLI leave entitlement and the employee will not receive wage replacement benefits for them, unless they are on continuous leave that began before the cessation in operations.

3. Paid family and medical leave insurance benefits are available to an individual while taking paid family and medical leave from employment if the individual meets the definition of "covered individual" under C.R.S. § 8-13.3-503(3) and has a qualifying condition described at C.R.S. § 8-13.3-504(2).

A. To determine whether an individual has met the $2,500.00 threshold described at C.R.S. § 8-13.3-503(3)(a)(I), the Division will rely on wages reported to the Division by the employer pursuant to these rules. If a claim for benefits is denied because the reported wages do not establish that the individual has met the $2,500.00 threshold, the individual may request a reconsideration pursuant to Section 3.11 of these rules.

B. An individual claimant can meet the $2,500.00 threshold described at C.R.S. § 8-13.3-503(3)(a)(I) by earning wages subject to premiums from any combination of employers, and a claimant need not earn $2,500.00 from their current employer to meet the threshold

C. An individual meets the $2,500.00 threshold described at C.R.S. § 8-13.3-503(3)(a)(I) if the individual has been paid that amount of wages during either the individual's base period, as defined at C.R.S. § 8-70-103(2), or the individual's alternative base period, as defined at C.R.S. § 8-70-103 (1.5).

4. Paid family and medical leave insurance benefits are available for absences occurring on or after January 1, 2024 caused by a qualifying condition described at C.R.S. § 8-13.3-504(2), regardless of the onset date of the qualifying condition.

5. "Serious health condition" determinations by the Division will be in accordance with the Family and Medical Leave Act's provisions regarding "serious health conditions" at 29 C.F.R. 825 et seq., except where those regulations conflict with the FAMLI Act or its implementing regulations.

6. To determine whether an individual is a family member under C.R.S. § 8-13.3-503(11)(e) because the individual is someone with whom the covered individual has a significant personal bond that is or is like a family relationship, the Division will look to the totality of the circumstances surrounding the relationship, including, but not limited to, the following non-dispositive factors:

A. Shared financial responsibility, including shared leases, common ownership of real or personal property, joint liability for bills, or beneficiary designations;

B. Emergency contact designations;

C. The expectation of care created by the relationship and/or the prior provision of care;

D. Cohabitation and the duration thereof; and

E. Geographical proximity.

7. Clarifications regarding "caring for a new child" under C.R.S. § 8-13.3-504(2)(a):

A. "Caring" includes bonding with and providing basic needs for a new child.

B. "Child" means a person who is either under the age of 18, or between the ages of 18 and 21 and remains under the jurisdiction of a juvenile court.

C. Benefits under C.R.S. § 8-13.3-504(2)(a) are limited to 12 weeks per qualifying condition, and are limited to biological parents, adoptive parents, foster parents, step-parents, individuals standing in loco parentis to the child, and domestic partners of any of the individuals listed in this Section 3.4.7.C.

D. If a person has received benefits under C.R.S. § 8-13.3-504(2)(a) to care for a new child placed through foster care, and the person later adopts the child, the person is not entitled to again receive benefits under C.R.S. § 8-13.3-504(2)(a) in relation to the adoption of the same child.

8. Clarifications regarding "safe leave" under C.R.S. § 8-13.3-503(18) and 504(2)(e):

A. To determine whether an individual is the victim of domestic violence, the victim of stalking, or the victim of sexual assault or abuse, for purposes of determining eligibility for safe leave, an individual need not prove that a court has determined that the individual was the victim of domestic violence, stalking, sexual assault, or sexual abuse.

B. Benefits may be awarded based on the victim's good-faith attestation that the circumstances giving rise to the safe leave satisfy the elements of the offense.

C. If an individual is granted safe leave based on their good-faith attestations, and is later found by a court not to have been a victim of domestic violence, stalking, sexual assault, or sexual abuse, benefits paid for the leave will not be considered an overpayment unless a court's findings show that the attestations were not in good faith.

9. Pursuant to CRS 8-13.3-503(15), paid family and medical leave is leave taken from employment. If a claimant is not employed at the outset of their leave, then leave from employment is not possible and the claim for benefits will be denied. Examples of such denials include, but are not limited to, applications for leave to begin after the claimant has separated from their employer, applications for leave to begin during an off-season period in which a seasonal employee is not engaged in seasonal employment, and applications for leave to begin during periods of time between temporary placements by a staffing agency. A claimant must notify the Division if they become separated from employment before their benefit start date.

10. An additional four weeks of leave per benefit year for leave due to a serious health condition related to pregnancy complications or childbirth complications available under C.R.S. § 8-13.3-505(1) may not exceed four weeks per pregnancy.

11. Covered individuals are not eligible for benefits for any period in which they are not localized to Colorado pursuant to 7 CCR 1107-1, Section 1.6.

12. Paid family and medical leave includes travel time reasonably necessary to satisfy a qualifying leave reason under C.R.S. § 8-13.3-504(2).

7 CCR 1107-3.4

45 CR 18, September 25, 2022, effective 10/15/2022

46 CR 23, December 10, 2023, effective 1/1/2024

47 CR 23, December 10, 2024, effective 1/1/2025