Differences & Overlap Between HFWA and FAMLI Paid Leave

Division of Labor Standards and Statistics
707 17th Street, Denver, CO 80202 | 303-318-8441
www.ColoradoLaborLaw.gov | www.LeyesLaboralesDeColorado.gov

Interpretive Notice & Formal Opinion ("INFO") # 6C:
Differences & Overlap Between Colorado's Two Paid Leave Laws: The Healthy Families &
Workplaces Act ("HFWA"), and the Family & Medical Leave Insurance ("FAMLI") Program

Overview

• Colorado has two laws that provide employees with paid leave for a range of health and safety needs.
• Colorado's Healthy Families and Workplaces Act ("HFWA") requires employers to provide one hour of paid leave per 30 hours worked (up to 48 hours per year).
  • For the details of HFWA coverage and requirements, see INFO #6B.
• Colorado's Family & Medical Leave Insurance ("FAMLI") Program provides paid family and medical leave for up to 12 weeks (with an additional 4 weeks for pregnancy complications) to most employees on a continuous, intermittent or reduced leave basis.
  • For the details of FAMLI coverage and requirements, visit the Family & Medical Leave Insurance ("FAMLI") Program homepage.
• Depending on the situation, employee leave may be covered by HFWA, FAMLI, or both. This INFO covers:
• differences between when HFWA applies and when FAMLI applies; and
• how to apply HFWA, FAMLI, or both if an employee's leave could be covered by both laws.

What Different Reasons for Leave Are Covered by HFWA & FAMLI?

• HFWA covers a wide range of health and safety needs (for more details, see INFO #6B):
  1. inability to work due to any mental or physical illness, injury, or health condition;
  2. obtaining preventive medical care (including vaccination), or medical diagnosis/care/treatment;
  3. various needs due to domestic/sexual abuse, or criminal harassment;
  4. care for a family member who needs the sort of care listed above;
  5. various needs and situations during a declared public health emergency;
  6. bereavement, or financial/legal needs after a death of a family member; or
  7. due to inclement weather, power/heat/water loss, or other unexpected event, a need to evacuate one's residence, or care for a family member whose school or place of care was closed.
• FAMLI covers a partially overlapping range of needs (for more detail, see Reasons to take FAMLI Leave):
  1. medical leave to care for yourself or a family member due to a "serious health condition";
  2. parental leave within the first 12 months after a birth, adoption or foster care placement;
  3. various needs due to domestic/sexual abuse, or criminal harassment; or
  4. needs of family members of those called to active-duty military service.

Example 1: A new parent wishes to stay home to bond with and care for their newborn child, but not due to any medical condition or health need of the child or a parent. FAMLI applies; HFWA does not.

Example 2: A year later, that parent needs a day off to take their child to the pediatrician for a checkup and vaccination, then a day off a week later when the child has a cold. HFWA applies; FAMLI does not.

Who's Covered by HFWA and by FAMLI?

• Employees & employers covered: Both HFWA and FAMLI cover all employees and employers, in all sectors (public and private), industries, and jobs, including temporary or seasonal employees, except:
  1. both HFWA and FAMLI exclude employees of the federal government, as well as employees covered by the Railroad Unemployment Insurance Act; and
  2. FAMLI doesn't cover employees of local government employers who have opted out.

FAMLI also covers self-employed individuals, and employees of local governments that have opted out, who register to opt in individually (with a requirement to stay in the program at least three years).

• Coverage of new employees:
• HFWA covers employees immediately with no waiting period, but employees accrue leave gradually: one hour of paid leave per 30 hours worked (up to the 48-hour annual maximum).
• FAMLI benefits are available once an individual has earned at least $2500 in wages subject to FAMLI premiums and met FAMLI's program requirements for a "Covered Individual."[^1]

Example 3: An employee needs 6 days off for surgery, recovery, and a follow-up exam. They already used up all the HFWA leave they had accrued for the year. They are not eligible for HFWA leave, but they may be eligible for FAMLI leave, assuming they meet the FAMLI coverage requirements (above).

Example 4: Same as example 3, but: the employee still has 48 hours' HFWA leave available; the employer is a local government that opted out of FAMLI; and the employee chose not to opt into FAMLI individually. They are eligible for HFWA but not FAMLI leave.

How Do HFWA & FAMLI Apply If an Employee's Leave Could Be Covered by Both Laws?

• If both laws could apply to a leave request, the employee can choose whether to take HFWA or FAMLI leave, or whether to take one after another, in either order. For example:
• An employee unsure if their leave will be longer than HFWA provides can take HFWA leave first, then FAMLI leave if they need more leave time.
• An employee needing more leave than HFWA provides can take HFWA leave first, then FAMLI leave.

Example 5: An employee who regularly works eight-hour days Monday-Friday needs 44 hours of leave: a full day off on Monday for foot surgery; then Tuesday through Friday off to recover at home; then a half-day off two weeks later for follow-up appointment by the surgeon. The employee's options include:
(A) They can take just HFWA leave if they have 44 hours of leave available — i.e., if they accrued that much HFWA leave (which a new employee may not have), and didn't already use up too much of that accrued HFWA leave. If they take just HFWA leave, then only HFWA (not FAMLI) requirements apply.
(B) They can take just FAMLI leave if they have 44 hours of leave available — i.e., if they're eligible for FAMLI coverage and hadn't already used too much FAMLI leave (such as if they already took 11-12 weeks of FAMLI leave). If they take just FAMLI leave, then only FAMLI (not HFWA) requirements apply.
(C) They can take HFWA leave at the start — for example, the first 8-hour day, if they have only that much HFWA leave available — then FAMLI leave for the other 36 hours (or they could take FAMLI leave before HFWA leave). If they use HFWA for part of their leave, and FAMLI for the rest, then HFWA requirements apply to the HFWA time, and FAMLI requirements apply to the FAMLI time.

[^1]: As defined in C.R.S. § 8-13.3-503(3). Once an employee has been employed by their current employer for at least 180 days, individuals are also eligible for job protection under C.R.S. § 8-13.3-509.

For More Information:

• For questions specific to FAMLI, visit the Division of Family & Medical Leave Insurance website, call 1-866-CO-FAMLI (1-866-263-2654), or email [email protected].
• For questions specific to HFWA, visit the Division of Labor Standards and Statistic website, call 303-318-8441, or email [email protected].
• For questions about overlap and differences between FAMLI and HFWA, contact either Division.

INFOs are not binding law, but are the officially approved Division opinions and notices on how it applies and interprets various statutes and rules. The Division continues to update and post new INFOs; email [email protected] with any suggestions. To be sure to reference up-to-date INFOs, rules, or other material, visit ColoradoLaborLaw.gov. Last updated Nov. 17, 2023