Federal law and guidance on this subject should be reviewed together with this section.
Authors: Margaret Parnell Hogan and Susan A.P. Woodhouse, Littler
- Colorado does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- Colorado has requirements regarding pregnancy disability leave and pregnancy-related reasonable accommodations. See Pregnancy Disability Leave and Accommodation.
- Employers that provide leaves to biological parents for the birth of a child must apply the same leave to an employee adopting a child. See Adoption Leave.
Family and Medical Leave
A Colorado employer with 50 or more employees will likely be required to adhere to the federal Family and Medical Leave Act (FMLA).
If a Colorado employer is covered under the FMLA, the employer must also provide eligible employees with leave to care for a domestic or civil union partner who has a serious health condition, even though leave for such a purpose is not required by the federal FMLA. See Colorado Civil Union Act; Colorado Family Care Act.
The Supreme Court ruled that the 14th Amendment requires a state to do the following:
- License a marriage between two people of the same sex; and
- Recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.
Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015).
Same-sex marriage is legal nationwide, and couples lawfully married in any state, including Colorado, are entitled to FMLA spousal leave benefits.
A Colorado employer should be careful if it seeks to confirm an employee's same-sex spousal relationship (for purposes of the FMLA) to ensure it does not discriminate in any way. While the FMLA allows an employer to confirm a family relationship, the employer's practices to confirm such relationships should be the same for employees in same-sex marriages as those in opposite-sex marriages (e.g., if an employer does not ask heterosexual employees for marriage licenses it should be careful about asking homosexual employees for such documentation).
Apart from FMLA considerations, employers with employees residing in Colorado should look at existing policies that provide for leave based on spousal relationships, such as bereavement leave or military leave. Policy language (such as how a spouse is defined) may need to be revised.
Colorado Civil Union Act
The Colorado Civil Union Act recognizes civil unions entered into by same-sex and opposite-sex couples and provides that civil union partners have the rights and responsibilities granted to spouses, including, among other things, family leave benefits under state law. +C.R.S. 14-15-101; +C.R.S. 14-15-103; +C.R.S. 14-15-104; +C.R.S. 14-15-105; +C.R.S. 14-15-106; +C.R.S. 14-15-107; +C.R.S. 14-15-108; +C.R.S. 14-15-109.
Employees registered as civil union partners under the Civil Union Act are not eligible to take leave to care for their partners under the FMLA, as the FMLA does not cover civil unions. Because of this, employers do not need to modify their federal FMLA policies.
Colorado Family Care Act
The Colorado Family Care Act (FCA) requires a Colorado employer covered by the FMLA to provide eligible employees with leave similar to FMLA leave (up to 12 weeks of unpaid leave in a 12-month period) to care for a domestic or civil union partner who has a serious health condition. +C.R.S. 8-13.3-201; +C.R.S. 8-13.3-204.
A covered employer should consider including a family care act leave policy in its handbook to educate employees, including supervisors, about the availability of family care act leave and to show its compliance with Colorado law.
Under the FCA, an employee is eligible for leave if he or she is eligible for federal FMLA leave with regard to length of employment and hours worked, and is either:
- In a civil union under Colorado law; or
- In a domestic partnership that is:
- Registered within the person's municipality where he or she resides or with the state; or
- Recognized by the employer.
An employer may require an employee requesting leave to provide reasonable documentation of the employee's relationship with the civil union or domestic partner that forms the basis for leave. Such documentation can be in the form of a written statement of the relationship from the employee. An employer may also require the certification forms required under the FMLA for a serious health condition. Requiring these documents helps prevent FCA leave fraud. An employer should have a process for requesting documentation and should apply this process consistently to all employees who request leave for a covered family member.
According to the FCA, leave taken under the FCA does not increase an employee's FMLA leave entitlement during a 12-month period, and leave taken under the FCA runs concurrently with FMLA leave. However, because the FCA provides a qualifying reason for leave that goes beyond the FMLA (i.e., permitting an employee to take leave to care for a civil union or domestic partner), it is arguable that leave taken under the FCA cannot affect an employee's FMLA leave entitlement.
Therefore, if a Colorado employee takes leave to care for a same-sex domestic partner under the FCA, that leave will likely be in addition to any leave allowed under the FMLA. Said another way, despite the language in the state law to the contrary, it is arguable that the FCA leave will never run at the same time as FMLA leave because the two laws do not have overlapping qualifying reasons. This is an area that is still up for interpretation, so employers should contact their experienced employment law counsel to ascertain how to administer leave for domestic or civil union partners in Colorado.
Tammy, a long-term employee of Acme Ice Cream Parlor and a resident of Colorado, requests 12 weeks of FMLA-qualifying leave in order to recover from her recent heart surgery. Acme grants Tammy's request and counts the time against her FMLA entitlement. Two months after returning from leave, Tammy's domestic partner, Judy, gets diagnosed with breast cancer, and Tammy asks for four more weeks of leave in order to care for Judy. HR grants Tammy's request and gives her four weeks of FCA leave (leaving her with eight more weeks of FCA leave).
If Judy was ill before Tammy and Tammy had first taken 12 weeks of state leave to care for Judy (non-FMLA-qualifying leave because the FMLA does not recognize civil union or domestic partners as spouses), that time would not count toward her FMLA entitlement and Tammy would be eligible for an additional 12 weeks of FMLA leave in that same leave year for her own serious health condition. Thus, the FCA gives Tammy the potential to double dip and receive up to 24 weeks of unpaid leave.
Colorado employers should make sure that their leave policies and procedures include information on leave to take care of a civil union or domestic partner. An employer should also have a process for requesting documentation to show a domestic partnership is registered and consider requesting documentation of the family relationship that forms the basis for leave. However, any process should be consistently applied to other employees who request FMLA leave to care for a covered family member. See also EEO - Discrimination: Colorado.
Pregnancy Disability Leave and Accommodation
Disabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth and recovery are, for all job-related purposes, temporary disabilities and must be treated as such under any health or temporary disability insurance or sick leave plan available in connection with employment.
Written and unwritten employment policies and practices involving matters such as commencement and duration of leave, the availability of extensions, reinstatement and payment under any health or temporary disability insurance or sick leave plan must be applied to disabilities due to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.
An employer must also provide reasonable accommodations to employees and applicants for health conditions related to pregnancy or the physical recovery from childbirth, unless the accommodation would impose an undue hardship on the employer's business.
While a leave of absence is not expressly granted under the law, it may be considered a reasonable accommodation depending on the circumstances. For more information on pregnancy accommodation, please see Disabilities (ADA): Colorado.
A Colorado employer that provides maternity or paternity leave to biological parents must, upon request, make the same time off available to employees who adopt a child. Requests for additional leave due to the adoption of an ill child or child with a disability must be considered on the same basis as comparable cases of complications accompanying the birth of a child. Any other benefits provided by the employer (e.g., job guarantee or pay) must be available to both adoptive and biological parents on an equal basis.
The requirements of the adoption leave law do not apply to the adoption by the spouse of a custodial parent or to a second-parent adoption. +C.R.S. 19-5-211.
An otherwise eligible employee would also be entitled to FMLA leave to bond with a child after adoption. See Family and Medical Leave Act (FMLA). Nothing in the state Adoptive Parents Leave law prohibits an employer from having adoption leave under federal and state law run concurrently.
Interaction of Leave Laws
Other types of leave may be available to Colorado employees - some required by federal, state or local law, and some provided by company policy, as well as several sources of income replacement. See Other Leaves: Colorado. While some of these laws can run at the same time, others cannot.
Remain alert to the various types of leave available and take care to track an employee's leave of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.