The ending of the national COVID-19 public health emergency means something more for Colorado employers: it triggers the end of the extra Public Health Emergency Sick Leave employers have been providing employees since January 2021. (See the previous Leavitt Group article The National Emergency is Over! FAQs Address Unwinding of COVID-19 Public Health Emergency / National Emergency Impact on Health Plans.) Effective June 8, Colorado employers will no longer be obligated to provide such leave. However, there are still additional employee leave obligations employers should ensure are complied with (or prepared to comply with) following the impending end of the PHE sick leave. What do Colorado employers need to know?
Wait! There remain state leaves to consider.
As COVID leave ends, Colorado employers are reminded that since January 1, 2023, Colorado employers must provide state Family and Medical Leave Insurance (FAMLI). Beginning in January 2024, most Colorado workers will be eligible to apply for FAMLI leave benefits and receive compensation from the state while addressing family and medical needs for themselves or family members.
While leave eligibility does not begin until January 2024, Colorado employers have an obligation — starting January 1, 2023 — to collect FAMLI insurance premiums from workers’ wages and provide notice to workers about their new benefit. Private employers with at least 10 employees also must contribute insurance premiums to the state of Colorado to help finance the FAMLI program.
Employers were required to remit payment of FAMLI premiums to the state of Colorado on a quarterly basis. The first quarterly premium payments was due on March 31, 2023. There was a 30-day grace period, however, allowing payment by April 30, 2023.
For 2023 and 2024, the employee and employer contribution rates are capped at 0.45%. The director of the FAMLI Division sets the premium rate and may raise rates beginning in 2025. Contributions are statutorily capped at 1.2%. See below for more details on complying with FAMLI.
All employers in Colorado have been obligated to provide PHE leave for COVID-19-related absences since January 1, 2021. The law was enacted to address the COVID-19 pandemic and contains broad language applicable to any public health emergency declared by federal, state, or local public health agency.
Under the Colorado Healthy Families and Workplaces Act’s (HFWA) PHE leave provision, employers have been required to provide an additional amount of paid sick leave during the COVID-19 public health emergency in an amount based on the number of hours the employee works. There has been no documentation requirement for an employee to take this leave for self-isolation due to a positive diagnosis, seeking medical treatment with respect to a disease, caring for a family member or a child, or inability to work due to pre-existing health conditions.
Ending of PHE Leave
Colorado employers will finally see an end to HFWA’s Public Health Emergency Leave. The Department of Health and Human Services’ public health emergency expired on May 11. And that triggers the end of the state-based obligation.
This public health emergency status has been renewed every three months for the past few years, keeping Colorado employers on the hook for paying public health emergency leave. Now that the emergency has expired as of May 11, Colorado employees’ entitlement to supplemental leave for the COVID-19 emergency will ends four weeks later. That means that as of June 8, employers will no longer need to administer such leave.
Where Does that Leave Colorado Employers?
As a result, employers should remind yourself of the remaining obligations under Colorado’s HFWA which will remain in effect. Make sure Paid Leave and COMPS posters are updated and that COMPS Order #38 are given to employees with any handbook updates. The Paid Leave poster and notice provides employees with a written notice of their rights under HFWA. Ensure policies are up to date, and an internal training for human resources staff and managers on the revised and continued requirements should be provided.
Preparing for FAMLI Leave
1. Register Your Business with the CDLE’s FAMLI Division. Registration is now open, and all businesses employing even one Colorado employee must register to make their first FAMLI premium payments by April 30.
2. Ensure Your Business Is Deducting FAMLI Premiums from Employee Wages. All Colorado employers are obligated to facilitate collection of FAMLI premiums for their Colorado employees. Employers may deduct the employee share of FAMLI premiums (0.45% of employee wages) through a simple payroll deduction.
For Colorado employers who have yet to implement the FAMLI payroll deduction for their employees, they should do so right away. Employers are prohibited from retroactively deducting employee premiums from employee wages. Thus, employers who have not implemented to payroll deduction must cover missed premiums themselves.
3. Determine Your Business’s Required FAMLI Contributions for the First Quarter of 2023. As noted above, all Colorado employers are obligated to collect FAMLI premiums for their Colorado employees. The employee share of FAMLI premiums is set at 0.45% of employee wages for the first quarter of 2023.
Employers with 10 or more employees are responsible for separately paying 0.45% of their Colorado employee wages as FAMLI premiums. This is true even if an employer has one to nine employees in Colorado and the remaining employees working outside the state of Colorado. Employers with fewer than 10 employees total do not have to make separate employer contributions and are responsible only for facilitating collection of the employee share of FAMLI premiums for their Colorado employees.
All employers should have remitted payment for the first quarter 2023 FAMLI premiums by April 30, 2023.
4. Update Your Employee Handbook and Leave Policies to Ensure FAMLI Compliance. Starting January 1, 2024, employees generally have access to 12 weeks of FAMLI paid leave, and employees with serious health conditions due to pregnancy complications or childbirth have access to an additional four weeks of paid leave (for a total of 16 weeks).
In addition to informing Colorado employees of their rights, Employers should consider updating their employee handbooks and leave policies to address FAMLI leave. For example, employers should determine:
- How should employees provide notice of their intent to take FAMLI leave?
- Whether employees can supplement FAMLI leave with other accrued paid leave?
- Whether newly hired employees (who have worked for less than 180 days) are guaranteed continued employment or if their positions require filling?
Employers should consult with an employment attorney to assess whether any newly enacted policies comply with FAMLI and other federal, state, and local employment regulations. Contact your Leavitt Group representative who can connect you to one.
5. Determine Whether to Directly Provide Paid Family and Medical Leave to Your Employees and Opt Out of FAMLI. Employers who have already implemented or plan to implement a paid family and medical leave program for their employees may obtain approval from the state of Colorado to opt out of their FAMLI obligations.
More information regarding FAMLI, FAMLI-replacement private plans, and other frequently asked questions regarding FAMLI is available here. The state of Colorado will allow refunds for any premiums paid in 2023 for employers who submit approved private plans with an effective date on or before January 1, 2024. To be eligible for a refund, employers must submit their private plan applications to the Colorado Department of Labor and Employment by October 31, 2023.
Notably, until the state of Colorado determines that an employer’s private paid family and medical leave program provides equal or greater benefits and protections as FAMLI, the employer must comply with FAMLI’s contribution provisions, including complying with the first FAMLI quarterly payment deadline.
Be sure to partner with Trusted Advisors like Leavitt Group and their preferred partner for employment law, Fisher Phillips. We will continue to monitor the paid leave situation in Colorado and provide updates as necessary. Contact your Leavitt Group representative if you need additional support on leave laws across the states.
Originally published by Fisher Phillips [Patrick J. Collopy, Kristin R.B. White, and, Robin Repass, the Leavitt Group preferred partner for employment law. Republished with permission. Some content and edits by Leavitt Group.