Law Governing FAMLI in Flux: General Assembly Introduces Two New Bills Regarding the Amount and Timing of Employee Benefits

Rob Thomas, Of Counsel

  Colorado’s Paid Family and Medical Leave Act (“FAMLI”)[1] has only been in effect for a month, but the General Assembly is already proposing changes to both the amount of benefits that an employee may receive, as well as when employees may begin to apply for and receive benefits, via two new bills: SB 23-046 and HB 23-1104. 

 Proposed Changes to Calculations of Average Weekly Wages for FAMLI Benefit Purposes:  SB 23-046

  The first bill introduced in the Colorado Senate—SB 23-046—would slightly modify the language of Colo. Rev. Stat. § 8-13.3.506 to clarify that for benefit calculation purposes, an employee’s entire work history and earnings during the base period would be considered, and benefit amounts would not be strictly tied to the job or jobs from which the employee is taking paid family and medical leave. 

  As of now, benefit calculations are tied to an employee’s average weekly wage, which is one-thirteenth of the wages earned during the quarter of the employee’s base period (which has the same meaning as under Colorado’s unemployment statutes)[2] in which wages were highest.  The proposed edits to FAMLI under SB 23-046 are intended to account for the employee’s complete work history (which may include two or more jobs) during the applicable base period in order to prevent any artificial reductions in benefits due to an employee’s transition from one job to another. 

 Potential Delay to the Implementation of Paid Leave by One Year:  HB 23-1104

             While employers must now register with the FAMLI program, collect and pay premiums, and comply with FAMLI’s reporting and documentary requirements, employees will not be able to apply for and receive paid family and medical leave benefits from the program until January 1, 2024.

             But, this timeline may change if HB 23-1104 is passed.  The bill proposes delaying the implementation of the FAMLI program by an entire year, with employees able to apply for paid family and medical leave benefits as of January 1, 2025.  Benefit amounts and calculations would be unchanged, but relevant benefit caps would be moved ahead by one year.  Thus, for paid leave between January 1, 2025 and December 31, 2026, the maximum benefit cap would be $1,100 per week, and the maximum benefit cap on and after January 1, 2026 would be 90% of the state average weekly wage.

Given that employers have already begun collecting and paying premiums under FAMLI, the bill also provides that employers must still collect and pay premiums for the January 1, 2023 through March 31, 2023 time period, but these paid premiums will offset premiums owed beginning on January 1, 2024.  Under the bill, employers would not have to collect and pay premiums for the April 1, 2023 to December 31, 2023 time period.  Apart from these timing changes, the premium amounts under FAMLI remain unchanged.       

 Takeaways

  It is clear that Colorado lawmakers are already facing significant challenges in implementing the FAMLI program—both in terms of how benefits should be calculated and when the program will be ready to manage and pay claims for sick leave under the Act.  As always, Campbell Litigation will continue to monitor the laws and regulations under the FAMLI program, and will be available to address employer questions as they arise. 

[1]Colo. Rev. Stat. §§ 8-13.3-501 et seq.

[2]Colo. Rev. Stat. § 8-70-103(1.5)-(2) (defining “base period” and “alternative base period,” which are also used in FAMLI).