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Other Leaves: Colorado

Other Leaves requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Stuart R. Buttrick, Thomas W. Carroll, Susan W. Kline and Mary L. Will, Faegre Baker Daniels LLP

Summary

  • There are various types of leave that may be available to an employee in Colorado. See Leaves of Absence.
  • Colorado does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
  • An employer may not terminate or discipline an employee who responds to a subpoena to testify in a criminal proceeding or to participate in the preparation of a criminal proceeding. See Crime Victim Leave.
  • A covered employer must provide victims of domestic abuse, stalking or sexual assault with leave to seek legal assistance or medical care, to secure their homes or to seek a protective order. See Domestic Violence Leave.
  • An employer may not terminate an employee, deprive an employee of any job benefits, or harass, threaten or coerce an employee because the employee receives a jury summons. See Jury Duty Leave.
  • An employer must give an unpaid leave to members of the National Guard or US military reserve for training with the US military. See Military Leave.
  • A qualified volunteer who is called into service by a volunteer organization for a disaster is entitled to up to 15 work days of leave per year for the time the volunteer is serving. See Qualified Volunteer Leave.
  • An employer may not terminate an employee who is a volunteer firefighter and fails to report to work because the employee has responded to an emergency summons, provided that the employee gives the employer a written statement from the fire department chief that the absence was due to the emergency summons. See Volunteer Firefighters Leave.
  • Depending on an employee's working hours, an employer must allow an employee eligible to vote to be absent from work for two hours, with pay, in order to vote. If the polls are open for three hours of nonwork time, the employee will not be entitled to leave. See Voting Leave.

Leaves of Absence

There are various types of leave that may be available to an employee in Colorado. To the extent that applicable federal, state or local laws conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee.

An employer should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

An employee who exercises leave rights is not protected from discipline for legitimate reasons that are unrelated to the leave and that are not otherwise prohibited by law.

If an employer must discipline an employee who has exercised his or her leave rights, it should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly), and consider whether to seek the advice of counsel before imposing the discipline.

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. For more information on domestic or civil union partner family and medical leave rights see FMLA: Colorado.

Adoption Leave

An employer who permits paternity or maternity time off for biological parents must make such time off available on the same terms for employees adopting a child, unless the adoption is by the spouse of a custodial parent or a second-parent adoption. For more information on adoptive parents leave, please see FMLA: 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. For more information on pregnancy accommodation see Disabilities (ADA): Colorado.

Crime Victim Leave

An employer may not terminate or discipline an employee who responds to a subpoena to testify in a criminal proceeding or to participate in the preparation of a criminal proceeding. +C.R.S. 24-4.1-303(8).

An employee will be considered eligible for time off if:

  • The employee is a victim of the crime at issue in the proceedings;
  • The employee is the victim's spouse, child by birth or adoption, stepchild, parent, stepparent, sibling, legal guardian, or significant other (someone in a family-type living arrangement with a victim and who would constitute the spouse of the victim if they were married); or
  • The victim died or is incapacitated, and the employee is the victim's spouse, parent, child, sibling, grandparent, significant other or other lawful representative.

An employee is ineligible for leave if he or she is in custody for the crime, accused of the crime or otherwise accountable for the crime or for a crime arising from the same conduct, criminal episode or plan. +C.R.S. 24-4.1-303; +C.R.S. 24-4.1-302.

An employer should consider including a crime victim leave policy in its handbook to educate employees, including supervisors, about the availability of crime victim leave and to show its compliance with Colorado law.

Domestic Violence Leave

An employer with 50 or more employees must provide victims of domestic abuse, stalking or sexual assault with up to three days of paid or unpaid leave in a 12-month period to:

  • Seek a civil protection order to prevent domestic abuse;
  • Obtain medical care and/or mental health counseling for the employee or the employee's children to address physical or psychological injuries resulting from the act of domestic abuse, stalking, sexual assault or other crime involving domestic violence;
  • Make his or her home secure from the perpetrator of the crime or to seek new housing to escape the perpetrator; or
  • Seek legal assistance to addresses issues arising from the crime and to attend and prepare for court-related proceedings arising from the act or crime.

+C.R.S. 24-34-402.7.

To be eligible for leave, employees must be:

  • Employed by the employer for at least 12 months; and
  • A victim of domestic abuse, stalking, sexual assault or the victim of any other crime, the underlying factual basis of which has been found by a court to include an act of domestic violence.

Unless there is an immediate danger of harm, an employee must provide his or her employer with the appropriate advance notice and documentation of the leave as required under the employer's policy. Employers can require that employees seeking domestic abuse leave exhaust all annual or vacation leave, sick leave and personal leave that may be available to the employee. Information related to the employee's leave must be held confidential by the employer.

The law does not limit the employer's right to discipline or terminate any employee for any reason, including reductions in work force or termination for cause or for no reason at all, other than exercising rights under the law.

A covered employer should consider including a domestic violence leave policy in its handbook to educate employees, including supervisors, about the availability of domestic violence leave and to show its compliance with Colorado law.

Jury Duty Leave

Under Colorado law, an employer may not terminate an employee, deprive an employee of any job benefits, or harass, threaten or coerce an employee because the employee receives a jury summons, responds to a summons or performs any obligations of juror service. For more information on jury duty leave, please see Jury Duty: Colorado.

Military Leave

An employer must give 15 days of unpaid leave per calendar year to members of the National Guard or US military reserve for training with the US military. For more information on military leave, please see USERRA: Colorado.

Civil Air Patrol Leave

An employee, who is a member of the civil air patrol, is entitled to an unpaid leave of absence of up to 15 days per calendar year, when called to serve on a Civil Air Patrol mission. The employee must return to work as soon as practicable and must provide evidence of the satisfactory completion of service. For more information on civil air patrol leave, please see USERRA: Colorado.

Emergency Responder Leave

Qualified Volunteer Leave

A qualified volunteer who is called into service by a volunteer organization for a disaster is entitled to up to 15 work days of leave per year for the time the volunteer is serving.

An individual is considered a qualified volunteer if:

  • The volunteer organization in which the employee is a member is included on the qualified volunteer organization lists created and maintained by the department of local affairs;
  • The volunteer is called to service through the organization under the authority of the county sheriff, local government, local emergency planning committee, or state agency to volunteer in a disaster; and
  • The volunteer receives the appropriate verification from the executive director of the department of local affairs.

The employee must provide the employer with a written statement that generally includes proof of qualified volunteer status and efforts. +C.R.S. 24-33.5-824; +C.R.S. 24-33.5-826.

The leave time may be unpaid but any leave time taken cannot affect the employee's vacation, sick leave, bonus or similar benefits.

An employer is not required to provide leave to more than 20 percent of their workforce on any given day or to essential employees. An employee is essential if the employee:

  • Is essential to the operation of the employer's daily enterprise;
  • Is absent and therefore would likely cause the employer to suffer economic injury; or
  • Has job duties that include assisting in disaster recovery for the employer.

An employer should consider including a qualified volunteers leave policy in its handbook to educate employees, including supervisors, about the availability of qualified volunteers leave and to show its compliance with Colorado law.

Volunteer Firefighters Leave

An employer may not terminate an employee who is a volunteer firefighter and fails to report to work because the employee has responded to an emergency summons, provided that the employee gives the employer a written statement from the fire department chief that the absence was due to the emergency summons.

An employer may not terminate individuals that leave to respond to an emergency summons if:

  • The employer does not consider the employee as essential to the daily operation of the employer's business;
  • The employer previously received written verification of the employee's volunteer status from the fire chief;
  • The emergency is within the response area of the employee's fire department and is of such magnitude that all firefighters must respond; and
  • The chief of the employee's fire department provides written verification of the time, date and duration of the employee's response to the emergency.

Additionally, if a volunteer firefighter is called to a disaster, qualified volunteers leave will apply to the absence or leave from work. +C.R.S. 31-30-1131.

An employer should consider including a volunteer firefighters leave policy in its handbook to educate employees, including supervisors, about the availability of volunteer firefighter leave and to show its compliance with Colorado law.

Voting Leave

Depending on an employee's working hours, an employer must allow an employee eligible to vote ("an eligible elector") to be absent from work for two hours, with pay, in order to vote. If the polls are open for three hours of nonwork time, the employee will not be entitled to leave.

An employee must request leave before the election day, and an employer may set the hours an employee can be absent (however, employees are permitted to require that the hours provided be at the start or end of their work shift).

An employer may not terminate an employee due to such absence. +C.R.S. 1-7-102.

An employer should consider including a voting leave policy in its handbook to educate employees, including supervisors, about the availability of voting leave and to show its compliance with Colorado law.

Training

Employers should be aware that certain leaves are protected by state law and therefore it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take the leave in the near future. See Training and Development: Federal.

Future Developments

Organ Donor Leave

While employers are not required to provide leave to an employee for the purpose of organ donation, an employer that chooses to provide a paid leave of absence for organ donation is eligible for an income tax credit.

Under the Living Organ Donor Support Act, effective August 8, 2018, for any income tax years beginning on or after January 1, 2020, but before January 1, 2025, an employer may take a tax credit that is equal to 35 percent of the expenses incurred:

  • In paying an employee during his or her leave of absence; and
  • For the cost of temporary replacement help, if any, during the employee's absence.

The leave of absence may not exceed 10 working days (or the hourly equivalent of 10 working days) per employee. The tax credit does not apply to a leave period in which an employee uses any employer-provided annual leave or sick days.

An employer may not claim a tax credit for a leave of absence taken by an employee who is paid $80,000 or more during the income tax year.

If the amount of credit exceeds the employer's actual tax liability for an income tax year, the excess amount will not be refunded. The employer may carry forward the unused credit for the next five income tax years, but must apply the credit against the income tax due for the earliest income tax year possible.

Upon the request of the Department of Revenue as part of an audit, an employer must provide medical documentation it received from the employee that verifies the employee's organ donation. An employer that cannot provide this documentation is ineligible for the credit.

+C.R.S. 39-22-540, as added by +2018 Bill Text CO H.B. 1202.

Additional Resources

Colorado Supplement: Table of Contents