Beginning on August 7, 2013, Colorado employees are eligible to take expanded leave to care for a family member, including an employee in a civil union partnership or a domestic partnership whose significant other has a serious health condition under the "Family Care Act" (Colorado House Bill 13-1222).
Currently, Colorado employers determine eligibility for up to twelve weeks of leave in a twelve month period based on the federal Family and Medical Leave Act ("FMLA") to care for a spouse, child or parent who has a serious health condition. Colorado's new Family Care Act allows an eligible employee to take leave to care for the employee's recognized partner in a civil union or the employee's recognized domestic partner. In accordance with the FMLA, the employer may require the employee to provide reasonable documentation or a written statement of the relationship, as well as require medical certification as allowed under the FMLA.
Despite the language of the Colorado law reading that the leave under state law runs concurrently with leave allowed under federal law, it seems possible that an employee may be able to take both FMLA and Family Care Act leave, adding up to 24 weeks of leave in a 12 month period. If FMLA leave is used first for a purpose that is permitted under both state and federal law and state leave has thereby been exhausted, the employer would not be required to provide any additional leave to care for a civil or domestic partner during that 12-month period. However, because the FMLA does not provide for leave to care for a civil or domestic partner and further reads that it does not supersede any leave allowed under state law, if leave were taken for a purpose other than one provided for under FMLA, then federal regulations would consider the employee eligible to take FMLA leave in addition to the amount of leave allowed under the state law in the same 12-month period. To determine leave entitlement, it matters whether the employee requests the new state-provided leave for care of a civil union or domestic partner before or after the employee has used up leave provided under the federal law. If an employee first requests leave to care for a civil union or domestic partner under state law, and subsequently requests leave under the federal law, the employee may get both state and federal benefits, 24 weeks in all.
As enacted, the Family Care Act is scaled back from the originally introduced bill. The initial bill would have provided for a Colorado employee permitted leave under the federal FMLA to include care for any person related to the employee by blood, adoption, legal custody, marriage or civil union partners and domestic partners. This would have permitted leave to care for siblings, grandparents, grandchildren and in-laws, regardless of age or dependency. Strong opposition from the business community led the bill to be amended to specify that the covered persons are those already eligible under FMLA and additionally includes civil and domestic partners.
To comply with the law, covered Colorado employers are advised to update their FMLA policies and forms before August 7, 2013, to include provisions of the Family Care Act regarding a civil union partner with a serious health condition. While employers are not required to recognize domestic partners under the law, if a person in such a relationship registers the domestic partnership with the municipality in which the person resides or with the state, the employer must still grant the leave.
This article is authored by Heather Joyce, Jackson Kelly PLLC. For other related news, click here to visit Jackson Kelly's Labor & Employment Personnel File site.