Warning to Colorado Employers: FMLA-Expansion Bill Would be Costly and Burdensome

by Sherman & Howard L.L.C.

The Colorado Legislature is currently considering a number of bills that, if signed into law, would have a serious effect on most employers in the State.  One bill that at first glance may appear to be fairly benign is House Bill 1222, which would basically supplement and multiply the rights of employees covered by the federal Family and Medical Leave Act.  The bill, as amended, would add to the list of persons with "a serious health condition" for whom an employee could take leave from work to care for.  The bill would also allow substantial "double-dipping," such that qualified employees would have the right to up to 24 weeks of job-protected leave of absence every year.

On February 28, 2013, the House Health, Insurance and Environment Committee approved the bill and sent it to the entire House for consideration.

The FMLA currently permits up to 12 weeks of leave every year for qualified employees to care for their own serious health condition or the serious health condition of a spouse, son, daughter, or parent.  The FMLA also provides such leaves for the birth of a child of, or the adoption or foster care placement of a child with, an employee.

House Bill 1222 would allow a qualified employee to have time off from work to care for the employee's spouse, partner in a civil union; parent, child, grandparent, grandchild, sibling, first cousin, aunt, uncle, niece or nephew; a party to a recorded designated beneficiary agreement under C.R.S. § 15-22-103; or the employee's domestic partner (if the domestic partner is registered or recognized by the employer as a domestic partner) [new relative and relationships in italics].

Because House Bill 1222 overlaps the FMLA, and because it contains language indicating that it does not increase the amount of leave a qualified employee from what he or she would receive under the FMLA, many people wrongly and understandably assume that the maximum 12 weeks' annual leave of absence provided by the FMLA will never be exceeded.  However, federal regulations provide that a qualified employee who takes a state law protected leave of absence to care for individuals who are not addressed by the federal FMLA are still entitled to additional federal FMLA leave.  In other words, an employee could receive 24 weeks' leave of absence by (1) receiving 12 weeks' leave under House Bill 1222 to care for a niece, for example, and (2) then receiving another 12 weeks' leave for purposes covered by the federal FMLA.  This is just one hypothetical; the number of possible permutations is exceedingly high.  Taking into consideration that leaves for different purposes may be taken on an intermittent basis and may overlap, the administration of this system will be time-consuming and burdensome.

Brooke Colaizzi, one of our Department's members, testified in opposition to this bill before the Committee on February 28.  Link to her testimony.   Employers that would find it burdensome to save vacant positions for employees while they are on leave for up to 24 weeks a year, and would find it administratively burdensome to make determinations of whether each segment of a leave was covered by Colorado and/or federal law, should be outspoken in opposition to this Bill.  Please contact your legislators and the Governor.  As Brooke testified, "Employers need their employees at work."

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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