Colorado employers operate under two overlapping leave laws: the federal Family and Medical Leave Act (FMLA) and Colorado’s Family and Medical Leave Insurance (FAMLI) program. FMLA requires larger employers to provide up to 12 weeks of unpaid, job-protected leave. FAMLI requires nearly every Colorado employer to fund up to 12 weeks of paid leave through a state-run insurance program. When an employee qualifies for both, the leave runs concurrently. When they qualify for only one, that entitlement still applies on its own terms.
Which Employers Are Covered
FMLA applies to private-sector employers with 50 or more employees for at least 20 calendar workweeks in the current or preceding year.1Office of the Law Revision Counsel. 29 USC 2611 – Definitions Public agencies and public and private elementary and secondary schools are covered regardless of size.2U.S. Department of Labor. FMLA Frequently Asked Questions Even at a covered employer, individual employees only qualify if they work at a location with at least 50 employees within 75 miles.
FAMLI reaches much further. Every Colorado business with at least one qualified employee must register with the FAMLI Division, submit wage data, and remit premiums.3Family and Medical Leave Insurance. Employers The only exemptions are self-employed sole proprietors with no employees, federal government employers, and local governments whose governing bodies have voted to opt out.4Family and Medical Leave Insurance. FAMLI and FMLA A five-person shop well below the FMLA threshold is still a FAMLI employer.
The total FAMLI premium is 0.88% of each employee’s wages. Businesses with ten or more employees pay the full rate, typically splitting it evenly at 0.44% between employer and employee. Businesses with nine or fewer employees owe only the employee’s 0.44% share, deducted from wages and remitted quarterly.3Family and Medical Leave Insurance. Employers Smaller employers may voluntarily pay the employer portion, but they are not required to.
Local governments that vote to decline FAMLI must still register in the My FAMLI+ system and revisit that vote at least every eight years. Employees of opted-out local governments can individually elect coverage, but with a catch: they receive paid benefits, yet their jobs are not protected under FAMLI during the leave.5Family and Medical Leave Insurance. FAQs for Local Governments Self-electing employees commit to at least three years of participation and pay the 0.45% premium themselves.
Which Employees Qualify
The eligibility rules do not match, so a worker who qualifies for one program may not qualify for the other.
Under FMLA, an employee must have worked for you for at least 12 months and logged at least 1,250 hours during the 12 months before leave begins.6eCFR. 29 CFR 825.110 – Eligible Employee The 12 months do not need to be consecutive, so a returning seasonal worker can eventually qualify.2U.S. Department of Labor. FMLA Frequently Asked Questions The 1,250-hour calculation counts only actual hours worked, not paid time off or holidays. And the 50-employees-within-75-miles test still has to be met.
FAMLI is simpler and broader. An employee qualifies after earning at least $2,500 in total wages within Colorado during the last five completed calendar quarters.7Family and Medical Leave Insurance. Individuals and Families FAQs No tenure requirement, no hours threshold, no location-based headcount test. Part-time, seasonal, and recently hired workers frequently reach FAMLI eligibility long before they would qualify for FMLA.
What Leave Pays and How Long It Lasts
FMLA provides up to 12 workweeks of unpaid, job-protected leave in a 12-month period. Employers can choose one of four methods to measure that 12-month window (calendar year, a fixed leave year, a forward-measuring period, or a rolling backward period), but the choice must apply consistently across all employees, and changing methods requires at least 60 days’ notice.8U.S. Department of Labor. Family and Medical Leave Act Advisor – Selecting a 12-Month Leave Year The leave itself is unpaid, though employees can elect (or be required) to substitute accrued paid time off.
Military caregiver leave carries a longer entitlement. A spouse, child, parent, or next of kin of a covered servicemember with a serious injury or illness can take up to 26 workweeks in a single 12-month period, and that cap is a combined total with any other FMLA leave used in the same period.9U.S. Department of Labor. Fact Sheet 28M(b) – Military Caregiver Leave for a Veteran
FAMLI provides up to 12 weeks of paid leave per benefit year, plus an additional four weeks for pregnancy or childbirth complications.10Family and Medical Leave Insurance. Individuals and Families The 12-month benefit period runs forward from the first day of approved leave. The wage-replacement formula is tiered: 90% of the portion of average weekly wages at or below 50% of the state average weekly wage ($767.47), and 50% of earnings above that threshold, up to a maximum weekly benefit of $1,381.45.11Family and Medical Leave Insurance. Rules and Guidance Those figures are tied to the state average weekly wage and adjust annually. Lower-wage workers see a higher percentage of their pay replaced than higher earners.
What Leave Can Be Used For
The two programs cover most of the same events. Both allow leave for the employee’s own serious health condition, care for a family member with a serious health condition, bonding after childbirth, adoption, or foster placement, qualifying exigencies related to a family member’s military deployment, and caring for a covered servicemember with a serious injury.2U.S. Department of Labor. FMLA Frequently Asked Questions
FAMLI adds two categories FMLA does not cover. Safe leave allows paid time off when the employee or a family member is dealing with domestic violence, stalking, or sexual assault. Neonatal care leave covers parents whose newborn needs extended medical care.10Family and Medical Leave Insurance. Individuals and Families Employers who track leave only through an FMLA lens will miss these entitlements.
The definition of “family” also differs. FMLA limits caregiving leave to a spouse, child, or parent. FAMLI extends caregiving to domestic partners, grandparents, grandchildren, siblings, and anyone with a relationship equivalent to family.4Family and Medical Leave Insurance. FAMLI and FMLA Under FMLA, “parent” includes someone who stood in that role when the employee was a child, even without a biological or legal tie, and the employee can establish this with a simple written statement.12U.S. Department of Labor. Fact Sheet 28C – Using FMLA Leave to Care for Someone Who Was in the Role of a Parent to You When You Were a Child
Both laws allow intermittent leave when medically necessary. FAMLI is more flexible for bonding leave: employees can take it intermittently without employer approval, while FMLA lets employers require bonding leave to be taken in a continuous block.
How the Two Laws Run Together
When an employee qualifies for both programs and the reason for leave is covered by both, the leave runs concurrently. The absence counts against the 12-week FMLA allotment and the 12-week FAMLI benefit year at the same time.4Family and Medical Leave Insurance. FAMLI and FMLA An employee does not stack 12 weeks of one on top of 12 weeks of the other.
Because FAMLI covers more employers and more situations, gaps regularly show up. A worker at an eight-person business has no FMLA rights but may still take 12 weeks of FAMLI-paid, job-protected leave. An employee taking FAMLI safe leave has no corresponding FMLA entitlement, because FMLA does not cover domestic violence situations. Tracking both entitlements separately, employee by employee, is the only reliable way to stay compliant.
How Claims and Notice Work
Under FMLA, employees must give at least 30 days’ advance notice when the need for leave is foreseeable, such as a planned surgery or expected due date.13eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave When the need is unexpected, notice must come as soon as practicable, generally the same or next business day.14U.S. Department of Labor. Fact Sheet 28E – Employee Notice Requirements Under the Family and Medical Leave Act Employees do not need to say the word “FMLA,” but they must provide enough information for the employer to determine whether the absence qualifies. The employer then has five business days to issue an eligibility notice explaining the employee’s rights and obligations, and it can request a medical certification (without demanding diagnosis details or intrusive medical records).15eCFR. 29 CFR 825.300 – Employer Notice Requirements
FAMLI claims work differently. Employees file directly through the My FAMLI+ portal, and the state (not the employer) determines eligibility and pays benefits.16Family and Medical Leave Insurance. My FAMLI+ Medical leave claims require a health care provider to certify the serious health condition through the portal. Once the FAMLI Division approves a claim, it sends the employer a determination notice.
Employer Duties During Leave
FMLA requires employers to maintain the employee’s group health insurance on the same terms as if they were still working, continuing the employer’s share of the premium and the same coverage.2U.S. Department of Labor. FMLA Frequently Asked Questions If the employee fails to return after their FMLA entitlement expires, the employer may recover its share of the premiums, but only if the failure to return is not caused by a continuing serious health condition or circumstances beyond the employee’s control, and only if the employee has failed to work at least 30 calendar days after returning.17U.S. Department of Labor. Family and Medical Leave Act Advisor – Employer Recovery of Benefit Costs Premiums cannot be recovered for periods covered by paid leave substituted for FMLA leave.
Both laws require job restoration to the same position or an equivalent one with the same pay, benefits, and working conditions. FMLA has a narrow exception for “key employees,” defined as salaried employees in the highest-paid 10% of the workforce within 75 miles. An employer can deny reinstatement to a key employee if restoring them would cause substantial and grievous economic injury, but only after notifying the employee in writing at the start of leave (or when the determination is made), explaining the basis, and giving them a reasonable opportunity to return. Miss the timely notice and the right to deny reinstatement is lost. Even under this exception, health benefits must continue during the leave.18eCFR. 29 CFR 825.219 – Rights of a Key Employee
The Private Plan Option
Employers who prefer to manage paid leave in-house can apply to the FAMLI Division for approval of a private plan instead of participating in the state program. A private plan must offer benefits at least as generous as the state plan. The application carries a one-time $500 fee, and denied applications can be resubmitted within one year without paying again.19Family and Medical Leave Insurance. My FAMLI+ Employer User Guide – Private Plans
Approved plans come with ongoing obligations. Self-insured plans require a surety bond equal to or greater than total payroll multiplied by the combined premium percentage. All private-plan employers complete an annual attestation and pay an annual maintenance fee. Failing to keep up can result in plan termination and forced entry into the state program. Private-plan employers must also deliver written notice to each employee (in English, Spanish, and any language spoken as a first language by at least 5% of the Colorado workforce) describing the plan’s benefits, eligibility rules, claim procedures, and appeal rights. New hires must receive the notice immediately.20Legal Information Institute. Colorado Code 7 CCR 1107-5.9 – Notice to Employees of Private Plan Benefits
What Noncompliance Costs
Employees denied FMLA leave, improperly terminated, or retaliated against can sue in federal or state court. Damages include lost wages and benefits, interest, and liquidated damages equal to the total of lost compensation plus interest. Courts have discretion to reduce the liquidated damages award if the employer shows a good-faith belief that its actions were lawful, but the lost wages and interest remain. Prevailing employees also recover reasonable attorney’s fees and expert witness costs, which is why plaintiffs’ firms take these cases on contingency.21Office of the Law Revision Counsel. 29 USC 2617 – Enforcement Where no wages were lost, an employee can still recover actual monetary losses such as the cost of arranging care, up to 12 weeks of wages (or 26 for military caregiver leave). Courts may also order reinstatement.
On the FAMLI side, the FAMLI Division assesses penalties and interest against employers who fail to report wages or pay premiums on time. Employers who violate the private-plan notice requirements face fines of up to $500 per violation.20Legal Information Institute. Colorado Code 7 CCR 1107-5.9 – Notice to Employees of Private Plan Benefits FAMLI also prohibits retaliation against employees who apply for or take leave, and includes its own job protection provisions. Employees who believe they faced retaliation can file complaints with the FAMLI Division, exposing employers to enforcement beyond the standard premium-related penalties. Ignoring registration and premium obligations creates a compounding liability as penalties and interest accumulate each quarter.