Colorado’s New Paid Family and Medical Leave Act Promotes Worker’s Health and Family over the weekly Paycheck

by | Jun 20, 2024 | Employment Law -- Employer |

In November 2020, voters from across the state of Colorado and from all political parties supported Prop. 118, leading to its passage by a margin of more than 15 percentage points, to create a state-run paid Family and Medical Leave Insurance (“FAMLI”) program.[i] By enacting FAMLI by ballot, Colorado became the first state to pass a paid family and medical leave law by a popular vote. Including Colorado, there are now 12 states with paid family and medical leave laws on the books, plus Washington, D.C[ii].

The FAMLI program started on January 1, 2024.[iii] FAMLI provides job-protected paid leave benefits to covered workers in Colorado, when qualifying life situations arise.[iv] These include the need to bond with a new child, provide care for your own serious illness or a family member’s, address specific safety needs related to domestic violence, sexual assault and stalking, or respond to military deployment and other military family needs.[v]   Those who experience pregnancy or child-birth complications may receive up to an additional four (4) weeks of pay..

Most Colorado employees are eligible for FAMLI benefits, including self-employed and independent contractors if they opt into the FAMLI program, and employees of local government that have opted out.[vi] Federal government and certain railroad employees are not covered. In order for a Colorado worker with a qualifying need for FAMLI leave to quality for FAMLI benefits, the individual must have earned at least $2,500 in total wages (including among different jobs) in the State of Colorado within a set period of time.[vii] Any employer with at least one Colorado employee must provide paid family and medical leave to its eligible Colorado employee. This includes permanent remote employees.

There is significant difference between the federal Family and Medical Leave Act (“FMLA”) and Colorado’s FAMLI Law. Although the two laws both address family and medical leave, the federal FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-protected leave for specified family, medical, and military reasons.[viii] The FMLA is not a paid family and medical leave law and does not apply to all workers in Colorado. Employees working for a business of any size are eligible for FAMLI. Only employees that work for businesses with 50+ employees qualify for FMLA. In addition, under FMLA, employees of covered businesses are not eligible for leave until they have worked 1,250 hours in the past 12 months with their employer. Under FAMLI, eligible covered Colorado workers are able to take up to 12 weeks of paid leave. This means that Colorado workers no longer have to choose between caring for themselves or their families, or continuing to work for a paycheck. FAMLI is designed to run concurrently with FMLA.[ix]

In addition, under FAMLI employers cannot require employees to use accrued vacation, sick leave or other paid time off before or while using FAMLI. An employee can agree to use accrued paid time off to top off pay or make whole but cannot receive more in compensation than their average weekly wage.[x]

The FAMLI program is funded through premiums paid by both workers and employers (depending on how many employees the business has). The portion paid by workers is made through a simple payroll deduction facilitated by the employer. In most cases, it is likely that covered employees will pay 0.45% of their wages up to a cap, regardless of employer size. Employers with 10 or more employees will also pay 0.45% of employee wages up to a cap. Taken together, these premium contributions will total 0.9% of covered employees’ wages up to a cap. Employers with fewer than 10 employees are not required to pay the employer premium share (but will remit premiums on behalf of their employees). Employees at small businesses who qualify for this employer premium discount will have the same access to the benefits of paid family and medical leave and job protection provided under the FAMLI as employees at larger employers. The law further allows employers to pay all or part of their employees’ share of the premium cost, so individual employee contributions may differ depending on whether the employer wishes to cover more or all of the employee’s share as an added benefit to their employees.[xi]

FAMLI wage replacement benefits will be paid at a rate of up to 90% of the employee’s average weekly wage with lower wage earners receiving a higher percentage. Benefits are calculated on a sliding scale using the individual’s average weekly wage from the previous five calendar quarters in relation to the average weekly wage for the state of Colorado and may increase over time. Benefits are capped at $1,100 per week. This contrasts greatly with the FMLA wherein employees receive no payment during their leave unless they have elected to use or supplement with their own accrued PTO or sick leave.

The legality of FAMLI did receive opposition prior to its roll out. However, in 2022, the Colorado Supreme Court unanimously upheld Colorado’s FAMLI which paved the way for its constitutional implementation.[xii] Opponents of the Act filed a legal challenge against FAMLI arguing that it violated the Colorado Constitution’s Taxpayer Bill of Rights (TABOR) due to the mechanism for funding the program from employees and employers. In 2021, the lower state court upheld FAMLI and dismissed the suit. The Colorado Supreme Court agreed to hear the case and unanimously rejected the legal challenge. The Court ruled TABOR does not apply because the program’s funding is not an income tax or a surcharge forbidden by TABOR.

FAMLI has seen additional benefits with its inception into law. More than 11,000 Colorado fathers have taken paid paternity leave so far this year under the FAMLI program, which covers all parents who welcome a new child through birth, adoption or foster placement.[xiii] This is a huge win for fathers who previously had to choose between bonding with their child or working for pay.

In fact, more than 40% of all bonding claims in Colorado were filed by males, according to gender statistics kept by the FAMLI Division.[xiv] The Division has already approved more than 29,000 total parental bonding claims since benefits became available at the start of the year, making bonding with a new child the No. 2 reason Colorado workers have taken paid leave (after caring for one’s own serious health condition).

As with most employment laws, employers are prohibited from discriminating or retaliating against employees for exercising their rights under FAMLI. Once you have worked for the same employer for at least 180 days (about six months), your job is protected under the law. That means you’re entitled to return to the same position, or an equivalent position, when your leave ends. You can still take FAMLI leave before you meet that 180-day threshold, but your employer is not required to keep your job for you when your leave is over. As long as you are eligible and qualify to use paid leave, your employer cannot prevent you from taking leave, and cannot penalize you for taking paid leave. Employers must also continue benefits during FAMLI leave. The Division is empowered to enforce FAMLI and there is a private right of action for employees, which includes damages and an award of attorneys’ fees to a prevailing plaintiff.

In conclusion, FMLA and FAMLI leaves provide significant support for employees in Colorado, offering both unpaid and paid leave options. Understanding the nuances of these leave programs is crucial for employers and employees alike to ensure compliance with the regulations and to make the most of the available benefits.




[ii] California, Colorado, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Jersey, New York, Oregon, Rhode Island, and Washington.


[iv]   Colo. Rev. Stat. 8-13.3-501, et. seq.

[v]   FAMLI applies if a military family member is called or ordered to active-duty service (for example, providing for the care or other needs of the servicemember’s child or family member, making financial or legal arrangements for the servicemember, attending counseling, attending military events, and spending time with the servicemember upon their return from deployment).

[vi] See 7 CCR 1107-1 at 1.5.6(A).


[viii] The Family and Medical Leave Act of 1993″ Federal Register 60, no. 4 (January 6, 1995): 2180-2279


[x] C.R.S.8-13.3-510(1)(c) (“under no circumstances shall an employee be required to use or exhaust any accrued vacation leave, sick leave or other paid time off prior to or while receiving family and medical leave insurance benefits”).




[xiv] Id.