By: Mr. David Bashford

In Colorado, the employees of a small business are variously eligible for paid sick leave under the Healthy Families and Workplaces Act (“HFWA Leave”), paid family and medical leave under the Family and Medical Leave Insurance Program (“FAMLI Leave”), and paid time off under employer provided PTO/vacation (“PTO”). This article highlights the requirements, differences, and overlap between HFWA Leave,
FAMLI Leave and PTO, aka the time off pileup.

HFWA LEAVE
All Colorado employers are required to provide up to 48 hours of paid leave per year for all their employees (full-time, part-time, temporary, etc.), beginning on the date of hire, accrued at a rate of at least one hour of paid leave for every 30 hours worked. HFWA Leave may be used in one-hour increments for various reasons that relate to the physical and/or mental health of the employee or of a family member, for bereavement, and for certain unexpected emergencies. While unused HFWA Leave does roll over from one year to the next, an employee may be limited to 48 hours of HFWA Leave each year. Unused HFWA Leave does not pay out upon termination of employment.

When an employee uses HFWA Leave, the employer must pay the employee the same hourly rate or salary for the time away on HFWA Leave as the employee normally earns. Benefits continue while on HFWA Leave. Employers may not require advance notice of HFWA Leave or that an employee arranges for a replacement while on HFWA Leave. Employees are required to give notice as soon as reasonably possible when the need for leave is foreseeable, such as a scheduled appointment.

HFWA Leave may not be counted as an absence for disciplinary purposes and an employer may not request documentation of the need for HFWA Leave unless the leave extends to four or more consecutive days during which the employee would have ordinarily worked.

For a more detailed HFWA Leave explanation, please see INFO #6B, published by the Colorado Department of Labor and Employment at cdle.colorado.gov, Interpretive Notice and Formal Opinions (INFOs) and Other Published Guidance.

FAMLI LEAVE
All Colorado employees that have earned at least $2,500 in wages for work performed in Colorado during the previous year are entitled to up to 12 weeks of FAMLI Leave per year, or up to 16 weeks for conditions related to pregnancy or childbirth. FAMLI Leave is a Colorado provided benefit, similar to unemployment insurance benefits, or, if the employer elects, is provided through a private insurance carrier.

Leave may be taken continuously, intermittently or as a reduced schedule. Benefits continue while on FAMLI Leave. An employer may not require an otherwise qualified employee to work for the employer for a specific period in order to take FAMLI Leave. While on FAMLI Leave, the employee will be paid up to 90% of their average weekly wage. If the employee has worked for a particular employer for 180 or more days, then FAMLI Leave is job protected and the employee is entitled to return to the same or an equivalent position, meaning same pay and benefits, upon a return from FAMLI Leave.

An employee is not required to provide advance notice of FAMLI Leave and an employer may not require advance approval to use FAMLI Leave.

For a more detailed FAMLI Leave explanation, please visit famli.colorado.gov.

Employers are required to provide notice to employees of both HFWA Leave and FAMLI Leave. A model notice for each is available at cdle.colorado.gov.

HOW DO HFWA LEAVE AND FAMLI LEAVE OVERLAP?
If an employee is eligible for both HFWA Leave and FAMLI Leave, the employee, not the employer, may choose whether to take HFWA Leave or FAMLI Leave and in what order. For example, an employee needing to miss work for 10 days for reasons that qualify for both HFWA Leave and FAMLI Leave, with 24 hours of available HFWA Leave, may first use the HFWA Leave (3 days) and then FAMLI Leave (7 days) or vice versa.

WHAT ABOUT PTO?
An employer may not require an employee to use PTO in any combination with, or sequence relative to, HFWA Leave or FAMLI Leave. An employee may choose to save PTO for vacation or other purposes that do not qualify for HFWA Leave or FAMLI Leave. An employer may choose to prohibit the use of PTO for reasons that qualify for FAMLI Leave or HFWA Leave to the extent that HFWA Leave is not integrated into PTO (explained below).

An employer and employee may agree to the use of PTO to top off FAMLI Leave so that the employee receives 100% wage replacement, but not more than 100%, while on FAMLI Leave.

An employer may integrate HFWA Leave into PTO, meaning PTO may be used for any HFWA qualifying reason and HFWA Leave does not otherwise accrue separately, if the PTO policy meets the HFWA Leave requirements. Remember, PTO does pay out upon termination of employment.

PRACTICAL IMPLICATIONS
Suppose that a full-time employee has a long-term health condition that prevents them from working and the condition qualifies for both HFWA Leave and FAMLI Leave. Suppose that the employee has 48 hours of available HFWA Leave. The employee may go out on HFWA Leave for six days, followed by FAMLI Leave for 12 weeks, all job and benefit protected, which means that for 13 weeks, the practice will have to make do with one less employee or hire a temporary replacement.

Suppose upon a return to work, the employee requests an accommodation under the Americans with Disabilities Act (or its Colorado equivalent), which accommodation may be additional leave or a reduced schedule for a period of time, which must be considered and granted to the extent the request is reasonable and will enable the employee (ultimately) to perform their job duties. Because the practice has already made it through 13 weeks of absence, it becomes difficult to contend that a few more weeks is unreasonable. Thoughtfulness is critical lest the practice confronts a retaliation claim.

Retaliation is an increasingly common claim raised by employees or former employees against an employer. An employer may not take remedial action against an employee because they have used HFWA Leave or FAMLI Leave. In the above scenario, at the outset, an employer should be clear that they will not be able to extend leave beyond that afforded by HFWA and FAMLI.

A common refrain we hear is that an employee was a poor performer before taking leave and the practice was on the verge of terminating them just as they went out on leave. May the employee be terminated upon their return for the prior poor performance? Such a move will almost certainly result in a retaliation claim because of the proximity between the use of leave and the termination for cause. Make sure you have good documentation of the prior performance concerns, acknowledged in some manner by the employee. Upon their return from leave, review the performance concerns and afford the employee a reasonable opportunity to meet expectations.

In general, when in doubt, err on the side of what is more favorable for the employee, make sure you have employment practices liability (“EPL”) insurance and seek the advice of counsel for the occasional sticky situation.

This article is intended as general guidance and not as legal advice.

Want to learn more about the Time Off Pileup and other employment law intricacies? Check out the HR Webinar Series from MDDS! These no-cost, dentist-only webinars will be offered on March 13, June 18, September 17 and November 6 over the lunch hour. Visit mddsdentist.com/event-list to learn more and register.

Mr. David Bashford is an attorney with the law firm Range PC, a management side employment and business law firm headquartered in Denver. David’s practice focuses on business matters, employment law, and training. He may be reached at davidbashford@range.law.