7 Colo. Code Regs. § 1107-4.5
Current through Register Vol. 47, No. 24, December 25, 2024
Section 7 CCR 1107-4.5 - FAMLI Benefits and Employer-provided Paid Leave1. The FAMLI Act and its implementing regulations do not entitle an employee to receive both wage replacement benefits under the FAMLI Act and employer-provided paid leave for the same hours absent, except that pursuant to C.R.S. § 8-13.3-510(1)(c), an employer and an employee may mutually agree that the employee may use any accrued employer-provided leave as a supplement to family and medical leave insurance benefits in an amount not to exceed the difference between the individual's wage replacement benefits under the FAMLI Act and the individual's average weekly wage.A. If employer-provided paid leave is used to supplement FAMLI wage replacement benefits, the employer may: (1) convert the dollar amount of the supplement into the corresponding number of employer-provided paid leave hours; and(2) subtract those hours from the employee's balance of accrued and unused employer-provided leave.B. The use of employer-provided paid leave to supplement FAMLI wage replacement benefits requires mutual agreement between the employer and the employee. If either the employer or the employee does not so mutually agree, employer-provided paid leave may not be used to supplement FAMLI wage replacement benefits. Any such agreement must be in writing and must be retained by the employer. The employer may rely on one written agreement per employee that covers all future supplements, so long as the terms of the agreement expressly provide that it is revocable by the employee.C. Mutual agreement between the employer and the employee is not necessary in order for an employee to use paid sick leave prior to receiving family and medical leave insurance benefits.2. If an individual receives both wage replacement benefits under the FAMLI Act and employer-provided paid leave for the same hours absent, and the employer and the employee have mutually agreed to supplement FAMLI wage replacement benefits with employer-provided leave, then any employer-provided paid leave in excess of the amount authorized by Section 4.5.1 of these rules is an overpayment that the employer may recoup.3. If an individual receives both wage replacement benefits under the FAMLI Act and employer-provided paid leave for the same hours absent, and the employer and the employee have not mutually agreed to supplement FAMLI wage replacement benefits with employer-provided leave, then any employer-provided paid leave for the same hours absent is an overpayment that the employer may recoup.4. In the event of an overpayment pursuant to either Sections 4.5.2 or 4.5.3 of these rules: A. The employer may recoup the overpayment by any legal means, including via one or more lawful deductions in accordance with C.R.S. § 8-4-105;B. The employer must replenish the employee's bank of accrued employer-provided paid leave in an amount equal to the overpayment amount if the employee requests it or if the employer chooses to recoup the overpayment; andC. If the employer-provided paid leave so recouped as an overpayment is paid sick leave, an employer's failure to replenish the employee's bank of paid sick leave in accordance with Section 4.5.4.B of these rules shall constitute a violation of the Healthy Families and Workplaces Act, C.R.S. § 8-13.3-401 et seq ("HFWA").5. To the extent possible, the FAMLI Act and its implementing regulations shall not be read to reduce rights under HFWA and its implementing regulations, and HFWA and its implementing regulations shall not be read to reduce rights under the FAMLI Act and its implementing regulations.6. If the Division determines that an employer has violated C.R.S. § 8-13.3-510(1)(c) or Section 4.5 of these rules, the Division may assess upon the employer a fine of up to $50.00 per employee per day.45 CR 23, December 10, 2022, effective 12/30/202246 CR 12, June 25, 2023, effective 7/15/202346 CR 23, December 10, 2023, effective 1/1/202447 CR 23, December 10, 2024, effective 1/1/2025