In this posting we will be focusing on FAMLI program benefits. Benefits will not be the same for everyone. Wage replacement depends on an individuals average weekly wage and the duration of approved leave will be determined by the Division which we will get into later.
What benefit will be paid for a 'covered individual' ?
Weekly benefit will be determined as follows:
The individuals average weekly wage that is equal to or less than 50% of the state average weekly wage will be replaced at a rate of 90%
The individuals average weekly wage that is more then 50% of the state weekly wage will be replaced at a rate of 50%
The maximum weekly benefit is $1100 for leave beginning before January 1, 2025.
You can find a benefits calculator by FAMLI HERE
The Division will recalculate wage benefit replacement awards for in-progress leave at the beginning of every calendar quarter and notify the employee and employer of changes to the benefit amount.
The use of leave benefits is restricted to absences caused by a qualifying condition regardless of the onset date of the qualifying condition.
Employees will not be required to use or exhaust any accrued vacation leave, sick leave, or other paid time off prior to or while receiving FAMLI benefits. However, an employer and employee may mutually agree that the employee may use any accrued vacation leave, sick leave, or other paid time off while receiving FAMLI benefits unless the aggregate amount a covered individual would receive exceeds the individuals average weekly wage.
How is the average weekly benefit determined if an individual has multiple sources of income?
If a 'covered individual' has multiple jobs, has multiple sources of self-employment, or has a job in addition to being self-employed and does not take leave from all sources of employment or self-employment, the average weekly benefit will be determined by prorating based on the portion of the individuals current weekly earnings lost due to the absence from work
How long are benefits paid?
The length of leave awarded will be determined by the Division for a duration based on details in the application, documentation submitted and known standards of care
The maximum allowable duration of leave benefits is 12 weeks in an application year (defined as the 12 month period beginning on the first day of the calendar week in which leave benefits start) EXCEPT benefits are payable up to an additional 4 weeks to a 'covered individual' that has a serious health condition related to pregnancy complications or childbirth complications.
Approved leave may be continuous, intermittent or reduced leave but may not exceed the max allowable duration in the 12 month application year.
* If an individual is awarded continuous leave, the duration of the awarded leave is not impacted by subsequent unemployment.
* If an individual is awarded intermittent or reduced leave and subsequently becomes unemployed, the awarded leave terminates upon unemployment and the individual may apply for benefits upon reemployment.
Approved leave may be taken in increments of one hour or less, if consistent with the increments the employer typically uses to measure employee leave, except that benefits are not payable until the covered individual accumulates at least eight hours of family and medical leave insurance benefits.
How will 'covered individuals' apply for benefits?
Individuals will apply directly to the Division and may be submitted up to 30 days before the benefit start date if foreseeable and up to 30 days after leave has begun if unforeseeable (90 days in some instances)
Applications may be submitted online, by mail, or by email
Applications will not be considered filed until all required information and documentation has been received by the Division
Applications not properly filed within 60 days after the Division receives it, the application will be closed and claimant notified.
Once an application is properly filed, the Division will notify the claimant and the employer of the proper filing within 5 business days and provide a decision within 2 weeks
If an application is approved in advance of the needed leave, the claimant is responsible for notifying the Division once the leave begins
Can an individual appeal the Divisions decision regarding benefits? Can an employer?
The answer is yes to both. A system will be established for administration review and determination of claims, appeals including denial of leave benefits. Judicial review of any decision is permitted AFTER the aggrieved has exhausted all administration remedies.
For Claimant Appeals:
Appeals must be submitted within 45 days of the Divisions initial benefits determination by submitting a completed 'Appeal Request Form' to FAMLI (may be up to 60 days in certain circumstances)
For Employer Grievances:
Grievances may be filed if the employer has a good-faith belief, supported by evidence, that the Division has granted and/or paid leave benefits in an amount, duration, or frequency beyond which the claimant is entitled OR in a way that unduly disrupts the employer's operations.
Excessive, frivolous, unsubstantiated or bad-faith grievances may constitute discrimination, retaliation, and/or interference leading to fines and/or civil action.
Employers may not treat an absence that is subject to appeal or judicial review as an absence not protected by the FAMLI Act unless and until the leave is denied and the claimant exhausts any right to appeal or judicial review.
If the outcome of an appeal or judicial review is pending outside of the benefits duration provided by FAMLI, it does NOT extend the leave or employment protections provided by FAMLI.
Requirements Regarding Notice to Employers
In any case the leave is foreseeable, an employee shall provide notice to a employer with not less than 30 days notice before the leave is to begin/intention to take leave. If leave is not foreseeable, employee is to notify the employer as soon as practical.
Covered individuals must notify their employer(s) of the need for leave and make a reasonable effort to schedule leave so as not to unduly disrupt the operations of the employer. Notification must be in the same manner typically used to communicate work availability
For intermittent leave, scheduling and notice requirements apply to each absence
Notification does not need to include any specific terms but must reasonably implicate qualifying leave to satisfy the notification requirement
Employers may require the notice contain the anticipated start time, anticipated duration, and when applicable, anticipated frequency of leave.
Covered Individuals Obligations During Leave
A covered individual or their designated representative must notify the Division within 10 days after the occurrence of any event, or the foreseeability of any event, that could change the amount or duration of approved leave
If leave is approved for intermittent or reduced leave, the covered individual must submit documentation to re-certify need for leave every 6 months. If an individual fails to re-certify, the approval for leave will expire.
Individuals approved for intermittent leave must notify the Division of absences in order to receive wage replacement benefits.
FAMLI / FMLA / Disability Insurance / Workers Compensation Implications / Unemployment
FAMLI & FMLA and Family Care Act
* Leave with wage replacement under FAMLI that also qualifies for FMLA runs concurrently.
* If the qualifying reason for FAMLI does not constitute a qualifying reason for leave under FMLA, then the extent to which FAMLI leave runs concurrently with leave under FMLA, if at all, will be governed by FMLA and its regulations.
FAMLI & Workers Compensation
* Benefits under FAMLI do not run concurrently with workers compensation benefits
* An absence from work caused by circumstances that would entitle an individual to workers compensation benefits, the individual would not be entitled to FAMLI benefits
* Individuals will be required to notify the Division if they receive any benefits under workers compensation during FAMLI leave
FAMLI & Unemployment Insurance Benefits (CESA)
* Benefits under FAMLI do not run concurrently with benefits under Unemployment Insurance
* If an absence from work caused by circumstances that would entitle an individual to unemployment benefits, the individual would not be entitled to FAMLI benefits
* Individuals will be required to notify the Division if they receive any benefits under the Colorado Employment Security Act (CESA)
FAMLI & Employer-provided Paid Leave
* FAMLI regulations do not entitle an employee to receive both wage replacement benefits under FAMLI and employer-provided paid leave for the same hours absent, however, an employer and employee may mutually agree that the employee may use any accrued employer-provided leave as a supplement to FAMLI benefits in an amount not to exceed the difference between the individuals wage replacement benefits under FAMLI and the individual's average weekly wage
FAMLI & Disability Insurance
* If FAMLI leave is taken for a reason that also qualifies for disability benefits offered by the employer, an employer may require FAMLI benefits to run concurrently with disability benefits so long as the employer provides written notice.
This is for educational / informational purposes only (Disclaimer) It is your responsibility to verify any and all information provided.