The Colorado Family Care Act (FCA) takes effect August 7, 2013. The FCA allows eligible employees working for covered employers to take up to 12 weeks of leave to care for their civil union or domestic partners with serious health conditions. The FCA follows the federal Family and Medical Leave Act’s requirements for employer coverage, employee eligibility, serious health condition, medical certification, and remedies available, but does not address other important leave administration issues such as intermittent leave, continued health benefits, temporary transfer, and guaranteed reinstatement.
Another important unresolved issue is whether FCA leave can be taken in addition to FMLA leave in the same 12-month period. The FCA states that leave runs concurrently with FMLA and does not extend the total amount of leave available in a 12-month period under the FMLA, the FCA, or both. But FMLA regulations say that state law determines who is a “spouse” for FMLA leave. And Colorado law does not recognize civil union or domestic partners as spouses. Unless that changes, FCA leave cannot count against an employee’s FMLA leave. But can FMLA count against an employee’s FCA leave? Two approaches have emerged in response. One approach is to follow the Colorado Legislature’s intent and reduce the amount of FCA leave available by any FMLA leave already taken in the same 12-month period. The other approach is to give employees up to 12 weeks of FMLA and up to 12 weeks of FCA in the same 12-month period. The second approach is more conservative and less likely to be challenged in court, which is the remedy for FCA violations. Until further guidance is received, we recommend that members consult with an MSEC attorney and determine their approach based on their risk tolerance.
Unfortunately, further guidance on these issues may not come until the first FCA cases are litigated. This is because no state agency was given authority to interpret or enforce the FCA.
For now, our advice is to administer FCA leave consistent with FMLA guidelines. That said, FCA leave is not FMLA leave. We recommend keeping FCA leave separate from FMLA leave with its own handbook guideline and medical certification form. The FCA does not require employers to have a handbook guideline; however, many employers use the handbook to communicate to employees about available leave.
We have prepared an FYI Colorado Statutes: Colorado Family Care Act, a sample Colorado Family Care Act medical certification form (in our FYI library), and added a Colorado Family Care Act sample handbook guideline to our Employee Handbook Planning Guide. Contact your MSEC representative with your questions.