Vail Daily column: The Colorado Family Medical Leave Act | VailDaily.com

Vail Daily column: The Colorado Family Medical Leave Act

Sometimes it happens. You, or someone in your family gets sick. Not the sniffles kind of sick, but the real kind of sick; the kind of sick where you, or the family member, needs to take time off and to be cared for. And that's precisely what Colorado's application of the Family Medical Leave Act contemplates.

The FMLA entitles eligible employees who work for covered employers to take unpaid, job-protected leave in a defined 12-month period for specified family and medical reasons. Under the FMLA, eligible employees are federally entitled up to 12-weeks of unpaid leave. The State's policy on FMLA leave grants employees 13 weeks (520 hours) of leave.

You'll notice there are a couple of hedge words in the above paragraph including "eligible" employees who work for "covered" employers, and "unpaid" leave, but we'll get to that in just a sec.

New rolling period

In applying and expanding the federal Family Medical Leave Act, Colorado makes at least a level effort to look out for its own with foresight and compassion and to help secure the common welfare. Imperfect? Sure. But enlightened government is nothing if not all about trying to find balance.

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Currently the State of Colorado provides eligible employees FMLA leave per year based on a fixed calendar method that runs from July 1 to June 30, consistent with the state's fiscal year. Effective July 1, 2014, however, FMLA leave has be allotted on a "rolling" 12-month period measured backward from the date an employee begins using FMLA leave.

So here's the rub; who is "eligible," what employers are "covered," and, yes, does "unpaid" really means "unpaid?" While you can take the time off and not have your employment threatened, the employer is under no obligation whatsoever to keep the gravy flowing. Employees may be allowed (or required) to use their accrued paid leave during FMLA leave.

The rules go like this:

Not only can the rug not be pulled out from under you during your qualified absence and you can be assured that your job will be protected, but your benefits will also be continued during your time off — things like … ah … health insurance for example. If the employee normally contributes to the cost of these benefits, he or she must continue to do so while on leave. When an employee's FMLA leave ends, the employee is entitled to be reinstated to the same or an equivalent position, with a few exceptions.

The reasons you can take family medical leave include the "addition" of a child, including, birth, adoption and placement of a foster child. You can also take FMLA time for the serious health condition of a parent, child, spouse, or yourself. A "child" is an offspring under 18 years of age or, if incapable of self-care due to physical or mental disability at the time leave is to commence, an offspring older than 18.

Military leave

Active duty military family leave may be taken for a member of the armed forces (including National Guard or Reserves) deployed to a foreign country. One may also take leave as a military caregiver for a member of the armed forces (including National Guard and Reserves) for up to 26 weeks. In this circumstance, the category of those eligible is expanded to include "next of kin" which means the nearest blood relative other than the covered service member's spouse, parent, or child. Next of kin can include siblings, grandparents, aunts, uncles, and first cousins but only one among them may be granted "covered" leave.

Well, then, who is covered?

Colorado employers must comply with the FMLA if they have at least 50 employees for at least 20 weeks in the current or previous year. Oops, that narrows things down a mite in Happy Valley as few employers employ that many warm bodies.

If, however, you work for a "large" employer, you may be eligible as an employee if: you have worked for the company for at least a year; you worked at least 1,250 hours the previous year; and you worked at a location with at least 50 employees within a 75-mile radius. What this last one means is if there are "satellite" locations within a 75-miles radius and the employees within that circumference add up to 50, then you may be covered.

Colorado employees also have the right to take time off under several separate but related state laws.

Unlike some other states, Colorado does not have its own family and medical leave law. However, Colorado's Family Care Act (FCA) expands the definition of a "family member" under the FMLA to include domestic partners and partners in a civil union.

Time to get on your feet

Employers with at least 50 employees must also allow eligible employees who have been victims of domestic violence, sexual assault, domestic abuse or stalking to take up to three days off in a 12-month period to: seek medical treatment or counseling for the employee or the employee's child; seek a civil protection order; seek legal assistance or attend court-related proceedings; or seek new housing or make an existing home secure.

Colorado also accommodates "Small Necessities Leave." Once again, employers with at least 50 employees must let employees who are the parents or legal guardians of children in school (kindergarten through 12th grade) take time off work to attend parent-teacher conferences or meetings related to special education, dropout prevention, attendance, truancy, disciplinary issues or response to intervention. Employees may take up to six hours of unpaid leave in any month, and a total of 18 hours of unpaid leave in any school year, for these purposes. Employees must, however, make reasonable efforts to schedule these activities outside of work hours.

Although the FMLA could conceivably be broader — say, for example, extended to much small employers — a balance was struck between fairness to the employee and fairness to the employer, the thinking being that a large employer could more easily "spare" an employee for some period of time than could a smaller one.

In applying and expanding the federal Family Medical Leave Act, Colorado makes at least a level effort to look out for its own with foresight and compassion and to help secure the common welfare. Imperfect? Sure. But enlightened government is nothing if not all about trying to find balance.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at both of his email addresses, robbins@slblaw.com and robbins@colorado.net.