by Shelby Felton, Esq. - Director and Product Compliance Counsel
November 22, 2023
About a month ago, we blogged about all the PFML rule changes in Oregon. Not to be outdone, Colorado enacted a significant number of PFML rule changes of its own. The most recent were enacted on October 31, 2023, as if Halloween wasn't scary enough.
Here is a summary of the changes:
- One of the biggest changes is that Colorado is moving to a measure forward method of tracking the 12-month leave period, similar to the FMLA's measure forward method. As a refresher, measured forward means an individual can use 12-16 weeks of CO PFML leave in a 12-month leave period beginning on the first day an employee takes leave and then for the next 12 months. The next 12-month period would begin the first time CO PFML is taken after the completion of the prior 12-month period. Initially, Colorado intended to use a "measure backward" or rolling tracking method which meant each time an employee used benefits, the remaining leave entitlement would be the balance which had not been used during the immediately preceding 12 months.
- Part of changing to a measure forward tracking method included amending the definitions of "Application Year" and "Benefit Year" to both mean the 12-month period beginning on the first day of the calendar week (any period of 7 consecutive days) in which an employee files an application or claim for PFML benefits. The regulation change also states, "[s]olely for the purpose of determining Application Year, the date the claim is filed is the Benefit Start Date." And, "Benefit Start Date," is defined as the "first day the covered individual is unable to work for which benefits are approved."
- While the above language of the regulations isn't entirely clear on whether the 12-month leave period will begin the date the application/claim is filed or the first date of leave, the state has suggested that it is applying the regulations to mean that the benefit duration is going to be calculated as of the first day of leave. We are hoping for additional clarification from the state before claims begin on January 1, 2024.
- There Division made significant changes to the definition of "Regular Work Schedule." When the program starts in January, it will be calculated by aggregating the average weekly hours from all jobs held by the employee. A job is any arrangement where an individual is paid for their services, including self-employment, gig work, and all employment, regardless of whether it is covered under the FAMLI Act. If the average number of weekly hours an individual would or does typically work cannot be determined, the average number of weekly hours worked over the previous four weeks may be used.
- There are also significant changes to how benefits are paid.
- Weekly usage is determined by dividing the number of hours of PFML taken per week by the aggregate Regular Work Schedule for that week.
- The hours of PFML taken for any job cannot exceed the Regular Work Schedule for that job.
- If an individual's Regular Work Schedule increases or decreases during their leave, benefit amounts must be adjusted to account for that increase or decrease.
- If the individual's work schedule for a job from which they are taking continuous PFML decreases to zero (e.g. termination, resignation, suspension of position, scheduled academic break), adjustments to benefit amounts will not be made based on that decrease.
- Regular Work Schedule must be calculated as of the first date of the leave and if there is a change in the Regular Work Schedule.
- The 8-hour threshold must be met with each claim and each recertification period.
- Benefits must be recalculated when the state average weekly wage changes each July.
- The rule amendments deleted the language about how to pay benefits if there are multiple jobs and the language about prorating for leaves of less than a week.
- The Division added a definition for "Health Care Provider" that matches the statute which requires that those providers be "licensed, certified or registered" to provide medical or emergency services under Colorado law or with an NPI number. "Medical or emergency services" means treatment for any physical or mental condition giving rise to a serious health condition. A Health Care Provider may only certify the need for FAMLI leave if such certification is within the diagnostic scope of their licensure, certification, or registration.
- Clarifications were made regarding the use of FAMLI benefits if there is a period of unemployment to state that benefits for continuous leave are not impacted by subsequent unemployment unless the individual receives unemployment benefits. The Division also clarified language regarding using benefits during a week with a holiday to state that a holiday during a continuous week of FAMLI leave has no effect, the employee will receive wage replacement benefits for the entire week. However, if FAMLI leave is taken intermittently, the employee will not receive wage replacement benefits for the holiday unless the employee was otherwise scheduled and expected to work during the holiday.
- The notice to employees section of the rule is now limited to just the employers participating in the state plan. Notice to employees for private plans is still addressed in 7 CCR 1107-5.
- As is required by statute, the notice to employers section now requires that foreseeable leave be taken so as not to unduly disrupt the employer's operations and notice for unforeseeable leave must be made as soon as practicable. Curiously, the amendments also deleted the language stating that the failure to comply with the Company's absence reporting requirements may result in discipline.
- The Division added a section to coordinate benefits when changing PFML plans from the state plan to a private plan, vice versa, or between private plans. When an employer changes plans, the previous plan is required to continue paying all approved leave (continuous, intermittent and reduced leave schedules) through the duration previously approved or until a recertification is required, after which the claimant may reapply for benefits with their new plan.
- There is also a new section for employees with multiple employers to go along with the changes to Rule 3.As stated in 1107-3, the hours of PFML taken for any job cannot exceed the Regular Work Schedule for that job. Rule 1107-4 then reiterates that each plan must calculate benefits based on leave taken under that plan but proportionate to the employee's aggregate Regular Work Schedule. Total benefits the employee receives cannot exceed the maximum weekly benefit and total duration cannot exceed the number of weeks provided by the law.
- Amendments to the rules require that beginning in 2024, private plans must submit quarterly reports to the Division for the first 3 years of the plan. We are hoping for report templates from the Division. The reporting must include an aggregated summary of:
- the total number of benefit applications received, approved, pending, denied, or closed;
- total benefit amounts paid;
- the total number of employees covered by the plan;
- the purposes of approved leave;
- the reported gender of individuals whose leave was approved or denied;
- the average weekly wage of individuals approved for leave;
- for leave taken to care for a family member, the family member's relationship to the employee; and
- appeals received, affirmed, reversed, modified, or withdrawn.
- Sections were added to the rule to address what happens if a private plan or employer becomes insolvent.
- New language states that if an employer deducts premium contributions from an employee's wages, and subsequently receives a refund of premiums paid from the private plan, the employer must distribute to the employee the refund proportionately and in accordance with how it was collected. If an employee leaves employment with the employer, any premiums previously deducted remain part of the employer's approved private plan.
- There were just a few amendments to Rule 6 to clarify the circumstances giving rise to an overpayment of benefits such as not working within Colorado, receiving unemployment benefits during any week the employee receives FAMLI benefits, or a health care provider who provides a certification outside of their certified scope of practice.
- These amendments added a definition of "Equivalent Position," to be the position identical to that before the employee took leave including pay, benefits, working conditions, privileges, perks, location, status, and the same or substantially similar duties, responsibilities, skill, effort, responsibility and authority.
- The amendment added initiating an eviction from employer-provided housing to the definitions of "Retaliation" and "Interference."
- The circumstances of reinstatement were amended so that reinstatement is not required where the employee fails to provide notice, unless the need for leave was unforeseeable and unusual circumstances justify the failure to comply or where the employee provides a written notice of resignation. Additionally, an employer that decides to deny restatement must notify the employee in writing as soon as that decision is made including the reasons behind the decision, an explanation that health benefits will continue to be made for the duration of the leave, and the date when health benefits will end.
- The Division revised Rule 8 from being about investigations, determinations and appeals to focus only on investigations done by the Division regarding alleged violations of FAMLI or its regulations.
- This rule is new. The Division removed the appeals process from all of the other rules and consolidated that process into new Rule 9. Appeals must be filed with the Division within 49 days of a "Determination," which is defined as an administrative decision or private plan decision.
- Parties cannot appeal a Division determination to a court of competent jurisdiction until all administrative remedies are exhausted, including an appeal to a Division hearing officer.
- Deadlines may be extended up to 42 days for good cause and up to 91 days for extraordinary circumstances.
Rules 3 through 8 were also amended overall to add language about providing communications in English, Spanish, and any language representing the first language spoken by at least 5% of the employer's workplace. Additionally, the Division will make efforts to provide program documents in any language upon request and based on available resources.
All of the changes above are in addition to the changes to 7 CCR 1107-1 Regulations Concerning Premiums and Individuals Electing Coverage that were enacted on August 14, 2023. Those amendments included:
- Changing the definition of wages to "gross wages;"
- Adding coverage, reporting, premium, and wage information for self-employed individuals;
- Clarifying premium payments when an employer becomes subject to FAMLI at any time during a calendar year;
- Division issued reimbursement of premiums to an employer; and
- Calculating employer size.
At the same time, changes were made to 7 CCR 1107-2 Local Government Participation to clarify the process and notification of program declination and voting for participation.
The Division stated that it does not anticipate any further rule making this year. In the spirit of Thanksgiving, we are all thankful for that news!
Reliance Matrix Can Help!
If you don't want to try to keep up with the long list of rule changes in all 14 of the mandatory state PFML programs, Reliance Matrix offers employers leave administration, including state paid family and medical leave solutions and accommodation services. For more information, contact your Reliance Matrix account manager or send us a message to [email protected].
Through its insurance and administrative services entities, Reliance Matrix offers integrated leave management services involving the FMLA, state-mandated paid family and medical leave and accommodation solutions. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].