Colorado Family Care Act legal alert

On May 3, Colorado Governor John Hickenlooper signed into law the Family Care Act.  The law purports to broaden an employee’s qualifying reasons for leave under the federal Family Medical Leave Act.  Specifically, the FCA provides that in addition to the leave that an employee is entitled to the under the FMLA, Colorado employees are now also entitled to up to twelve weeks of leave in a 12-month period to care for a person with who is an employee’s partner via a civil union, or an employee’s domestic partner as registered in the residential municipality or as recognized by the employer.  The FCA went into effect on August 7.

At first glance, the FCA seems to be a fairly straightforward, rational attempt by the General Assembly to extend FMLA leave to Colorado’s same-sex couples united by our state’s civil union or domestic partnership laws.  However, a deeper look into the FCA’s language exposes some problems for employers.  First, the law’s preamble indicates it is attempting to expand federal FMLA leave, stating that it is “concerning the expansion of the group of family members for whom Colorado employees are entitled to take leave from work under the federal Family and Medical Leave Act of 1993.” 

Subsequently, the FCA states, “in addition to the leave to which an employee is entitled under the FMLA, an employee in this state is entitled to FMLA leave to care for a person who has a serious health condition . . . .”  This language leaves Coloradoans to conclude that the FCA is meant to expand the federal FMLA.  However, under the FMLA and its regulations, Colorado cannot create leave based on new qualifications not present in the FMLA, and then require such leave run concurrent with federal leave.

The federal FMLA allows employees up to 12 weeks of leave in a 12-month period for a number of qualifying reasons.  One of those qualifying reasons is “to care for [her] spouse, or a son, daughter, or parent . . . if such spouse, son, daughter, or parent has a serious health condition.”  When a state enacts leave laws that provide qualifying reasons beyond those of the FMLA, such as allowing a state’s employees to take leave to care for other relatives, the statute’s regulations state that “nothing in FMLA supersedes any provision of State or local law that provides greater family or medical leave rights than those provided by FMLA.” 

Consequently, an employee’s state law leave based on a qualifying reason not allowed for under the FMLA is taken in addition to her FMLA leave.  That is to say, a Colorado employee who takes leave to care for a same-sex partner under the FCA takes that leave in addition to any leave allowed under the FMLA, giving that employee the potential to “double dip,” and take up to 24 weeks of leave to care for relatives with serious health conditions.

In the wake of the FCA’s enactment, some legal commentators have noted that the “double dip” potential only exists if FCA leave is taken first.  In contrast, they argue that if FMLA leave is taken first, FCA will run concurrently with the FMLA leave, and double-dipping will not be possible.  This argument seems to be based the FCA’s “concurrent” language, plus its provision that states, “this section does not increase the total amount of leave to which an employee is entitled during a 12-month period under the FMLA, this section, or both.” 

Yet, the FMLA regulations tell us that FMLA leave and broader state leave cannot run concurrently regardless of the order in which leave is taken.  The regulations state: “If FMLA leave is used first for a purpose also provided under State law, and State leave has thereby been exhausted, the employer would not be required to provide additional leave . . . .”  Accordingly, if FMLA leave is used first for a purpose not provided under state law, state leave is not exhausted.  The only way FCA leave and FMLA leave run concurrently is if the reason for the leave qualifies under both laws. 

When the FCA was signed into law this spring, its leave could not run concurrently with FMLA leave in any circumstance, because the qualifying reasons did not overlap; the FCA allows leave for civil union partners or domestic partners, while the FMLA does not allow leave for either.  Further, the FMLA’s interpretation of “spouse” was based on the Defense of Marriage Act, which provides, “the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” 

This meant that even if civil union and domestic partnerships were considered “spouses” under the FCA, the state leave still could not run concurrently with FMLA leave; the FMLA could not include same-sex partnerships in the definition of “spouse.”  However, on June 26, 2013, the United States Supreme Court struck down DOMA’s definition of “spouse” as unconstitutional.  We do not yet know how “spouse” will be interpreted for FMLA leave in the wake of this decision, and Colorado’s FCA does not include “spouse,” but it is possible that this change in federal law could change the ability of FCA leave to run concurrently with FMLA leave.  

Currently, the FCA creates an additional 12 weeks of leave per 12-month period, no matter the order in which leave is taken.  In administering such leave for the time being, employers should utilize the following practical points:  

1. Do not count FCA leave against an employee’s FMLA leave entitlement, or vice versa.
2. Do not call the leave “FMLA leave.”  Modify your documents to show the leave is under the Colorado FCA.  This will keep the types of leave separate and avoid confusion.
3. Require the documents allowed under the FCA to confirm that your employee is in a civil union or domestic partnership with the person for whose care the leave is taken.  This will help prevent fraudulent use of FCA leave.
4. Remember: while you can pay an exempt employee who takes intermittent/reduced schedule FMLA leave on an hourly basis without jeopardizing the exemption, doing so under the FCA will jeopardize the exemption.