This week, the Division of Family & Medical Leave held a rulemaking hearing on the proposed “benefits and participation” rule as part of the implementation of the new, state-run, family and medical leave insurance program. The Colorado Chamber of Commerce testified at the hearing and raised various questions/concerns on the following issues:
· Predictability for an employer if they choose to use a private plan;
· Clarification for process for approval of leave;
· A need for complete information from employees for leave request;
· Calculation of leave if an individual works for multiple employers;
· Repayment of leave if request was not made in bad faith;
· Clarification of holiday leave;
· Time limitation for adjudication of a claim;
· Balance for employers and employees in the appeal process.
A copy of the Chamber’s testimony and formal comments can be found here
Responses to CO Chamber Questions from Division staff:
The Division staff has provided information to help address some of the concerns/questions raised by CO Chamber members as outlined below:
· The Division will be the entity to approve and pay for the employee's leave. The employer is not tasked with this decision or payment.
· The employee or their designated representative is responsible for providing the Division the documents and information needed to approve the leave.
· The state holidays provision refers to the Division’s processing timelines for claims. An employer is not required to consider state holidays for FAMLI with any more specificity as they would for other state administered programs.
· Each employer will be required to register with the Division if they choose to opt-out of the program and registration will be managed through the employer services portal. Businesses that choose to provide a private plan or self-insured option will need to register within the portal as this is where the Division staff will communicate with employers as to whether their private plan has either been granted an exemption from state premium liability, or if the Division needs more information before granting an exemption.
· The portal will be used for payment of the 2023 premiums and to apply for the refund of those premiums once an employer has submitted documentation of an
· Paid holidays are based on employer set holidays and not the State set holidays. This rule was based on how FMLA covers holiday pay.
· If a worker is taking leave from 2 or more employers they would indicate this on their application and the amount of leave benefits paid from each job would be proportional to the wages reported at the job they were taking leave from. The employer does not have to do this calculation.
· Employers do not have to evaluate family relationships. The Division will be doing so as part of the application process. Employers are always welcome to report information about an employee's leave to the Division, but are not required since the employee under the State plan applies directly to the Division.
The Division has not released a proposed rule regarding the requirements for a private plan, however, that is the next draft rule to be released. In the meantime, the Division has shared formal guidance requiring all employers to pay benefits into the State program starting January 1, 2023. After that date but prior to January 1, 2024, employers with a private plan can begin applying for an exemption under the program. The Division’s goal is to review private plan applications after the launch of the program, and then refund employers within 90 days who are approved for an exemption.
The Colorado Chamber recently hosted a virtual forum with the Division staff giving representatives of Colorado businesses an opportunity to hear about the implementation process and to ask questions about the program.
To view the full presentation to the Chamber on the FAMLI program implementation, please click here.
Read more about FAMLI in the Denver Bussiness Journal article Businesses await details amid looming deadline to fund new state paid family leave.
CWPMA is a longstanding member of Colorado Chamber of Commerce and We appreciate the work they are doing on this while we focus on RFG and other industry specific issues.