FMLA – Denver Employment Lawyer

Colorado employment laws new for 2021

by Denver Employment Lawyer9 Jan 20217 Sep 2022Leave a comment

Colorado has two new and important employment laws taking effect with the beginning of 2021. 2021 hasn’t started great for many people but for Colorado employees it’s not so bad. Workers in Colorado now enjoy the benefits of the Healthy Families and Workplaces Act (HFWA) and Equal Pay for Equal Work Act.

Today’s post will break down these two new laws and how they will benefit employees in Colorado workplaces. These laws went into effect on January 1, 2021 so if your employers is covered by these new laws and already failing to meet their obligations under these laws then you should talk to a Colorado employment lawyer right away.

Healthy Families and Workplaces Act (HFWA) in Colorado

Colorado employees now enjoy the benefits of the Healthy Families and Workplaces Act in 2021 and beyond for paid sick leave. In 2021 the HFWA applies to employers with sixteen or more employees. In 2022 it will begin to apply to all Colorado employers. This statute allows employees to stay home for forty-eight hours, or six days, of paid sick leave. This law generally applies to both full time and part time employees; however, there are a few exempt employers.

Employees covered by a collective bargaining agreement with more generous terms are exempt. The federal government and employers covered by the Railroad Unemployment Insurance Act are also exempt.

Employees under the Healthy Families and Workplaces Act accrue paid sick leave rapidly. Employees earn one hour of paid sick leave for every thirty hours of work up to the forty-eight hour limit. If a public health emergency, like covid-19, is announced then the accrual is supplemented to eighty hours for a full time employee and for part-time employees a slightly more complicated formula of approximately their normal work time for two weeks. The public health emergency applies even if the employee has exhausted all other paid time off under other policies. Because covid-19 is an active pandemic, the supplement applies for 2021.

The HFWA includes many of the same legal protections and causes of action as other labor and employment laws. The statute requires employers to provide notice in the workplace of these rights in a conspicuous place so look forward to a HFWA notice in your breakroom.

The employment law also includes a private cause of action for employees who are denied paid sick leave compliant with the statute and a private cause of action for employees who suffer retaliation for requesting leave under the statute. This means employees denied paid sick leave under the law or retaliated against for requesting it can sue their employer in Colorado courts. There is no grace period for your employer.

If you have been denied paid sick leave under the HFWA or your employer retaliated for requesting it then you should talk to Colorado employment lawyers right away.

Colorado’s Equal Pay for Equal Work Act

Prior to 2021, Colorado employees were protected from sex-based and gender-based pay discrimination under federal and Colorado law. The federal Equal Pay Act prohibits sex and gender as a basis for pay discrimination (in addition to Title VII of the Civil Rights Act of 1964). Colorado law also prohibited pay discrimination under a bare bones statute giving a nod to the language of the federal Equal Pay Act.

With the Equal Employment Opportunity Commission‘s focus on pay discrimination in the 2010s there has been a focus on beefing up the regulations and statutes prohibiting pay discrimination on the basis of sex or gender.

The new Equal Pay for Equal Work Act strengthens Colorado law and assist employees in pursuing claims for pay discrimination. This statute requires equal rates of pay for similar work across sex, gender and gender-identity. The statute aligns more closely with the federal Equal Pay Act by carving out exceptions for permissible wage discrepancies when based entirely on:

(1) a “seniority system”;
(2) a “merit system”;
(3) a “system that measures earnings by quantity or quality of production”;
(4) the “geographic location where the work is performed”
(5) “education, training, or experience,” but only “to the extent that they are reasonably related to the work”; or
(6) “travel,” but only if the travel is a “regular and necessary condition of the work.”

The employer’s reliance on these factors must be reasonable and cannot factor in wage history, which may be affected by a history of pay discrimination.

Wage-based sex and gender discrimination is certainly not a new issue and not one that will go away any time soon. Increasing the tools for regulators to stamp out these practices and for employees to pursue claims when they are the victim of this form of discrimination is critical to reducing its harmful effects.

If you believe you have suffered pay discrimination on the basis of sex, gender, or gender identity then you should contact an employment lawyer in Colorado right away. This form of employment discrimination can involve claims under several federal and Colorado employment laws which have their own statutes of limitations and administrative requirements that must be met. Experienced Colorado employment lawyers can help you navigate this system.

What qualifies for family medical leave in Colorado?

by Denver Employment Lawyer16 Apr 20197 Sep 20222 Comments

Colorado employees often face difficult decisions about balancing work hours against taking leave from work for illness, disability and the care of family members. Legal protections exist for employees to take certain types of family leave and medical leave but it can be tough to figure out when those legal protections exist. Colorado employees may struggle to figure out what qualifies for family medical leave in Colorado?

Under federal and state employment law family and medical leave include specific categories of leave that include serious medical conditions and to provide care for specific family members. Adding to the complications of federal and state FMLA laws are other related laws that provide different legal protections for family leave and medical leave.

If you are unsure whether your need for leave qualifies under employment law then you should talk to Colorado employment attorneys about your situation.

FMLA and Colorado FMLA

For most employees in Colorado family medical leave is available through the federal FMLA and state Colorado FMLA. FMLA is the Family and Medical Leave Act. The federal FMLA protects the right for employees to take up to twelve weeks of unpaid leave from work for specific family and medical reasons.

The Colorado FMLA expands upon the leave protections of the federal employment law to extend additional reasons to workers. Assessing leave rights under both the federal and Colorado employment law requires a multistep analysis. Failure to qualify for FMLA or Colorado FMLA coverage may result in the employee not taking leave or taking leave without a legal right to return to work.

Reasons for FMLA and Colorado FMLA protected leave

Employees eligible for FMLA or Colorado FMLA protected leave may take leave for specific reasons enumerated in each statute. The federal FMLA is more limited in reasons but provides the basis for FMLA family and medical leave.

The federal FMLA permits leave for:

The birth or care of a newborn child of the employee;
Placement of a child for adoption or foster care with the employee;
Medical leave because the employee is unable to work due to a serious health condition; or
To provide care for an immediate family member with a serious health condition.

Federal law also extends FMLA to provide care for a military servicemember or veteran who has a service-related injury or illness or address a situation caused by the active service of an immediate family member.

The Colorado FMLA law—the Colorado Family Care Act—applies to all of the same reasons as the federal employment law but permits medical leave to provide care to a larger realm of family members. Let’s discuss the two most difficult issues in FMLA reasons for family medical leave: serious health condition and the family members covered by each statute.

Serious health conditions under FMLA and Colorado Family Care Act (CFCA)

A serious health condition for family medical leave involves “an illness, injury, impairment, or physical or mental condition that involves: A. inpatient care in a hospital, hospice, or residential medical care facility; or B. continuing treatment by a health care provider.”

Health conditions described by FMLA regulations for family medical leave include:

Incapacity due to pregnancy or childbirth;
A chronic serious health condition;
A permanent or long term health condition for which treatment may not be effective;
Treatment for an injury;
A condition that would result in incapacity of more than three consecutive days in the absence of medical intervention or treatment.

It is important to note that these definitions extend broadly to cover many health conditions but the employee’s entitlement to family medical leave under the statute must be coupled with the defined level of treatment. That includes inpatient care of at least an overnight stay or continuing treatment either with multiple visits for treatment or a regimen prescribed for treatment. These regulations extend specific rules around the meaning and application of these terms. In situations where your employer rejects an FMLA request for leave or considers rejecting a request you should talk to a Colorado employment lawyer about whether your leave request applies to federal and state law.

Family members under the FMLA and Colorado Family Care Act

Another common source of disputes under FMLA is who the statute covers when an employee needs to provide care for a family member with a serious health condition. Under the federal statute an employee may take family medical leave for the care of an immediate family member with a serious health condition. FMLA identifies specific individuals as an “immediate family member” for purposes of the statute. Under the federal law an immediate family member includes:

Spouse;
Child;
Parent;
Person who stood in loco parentis to the employee when the employee was a child (took on the responsibilities of being a parent to the employee when he or she was a child).

FMLA does not protect family medical leave for an employee to provide care for a sibling, niece or nephew, grandparent, aunt or uncle, or a boyfriend or girlfriend.

In 2013 the Colorado legislature decided employees often provide care for other people who have a close familial relationship and employees should have protected leave rights to care for those people. The legislature passed the Colorado Family Care Act which extends the range of individuals to whom the employee may receive protected leave to care for a serious health condition.

The Colorado Family Care Act extends coverage for:

Blood relationships;
Family relationships created by adoption;
Relationships created by legal custody;
Relationships created by marriage (such as step-children and in-laws);
Relationships created by civil unions;
A person in a committed, live-in relationship with the employee.

The Colorado Family Care Act extends care to many modern families left behind by the federal employment law. Many employees today provide care for in-laws, siblings, extended family members and live-in partners left out of the federal statute.

FMLA and Colorado FMLA eligibility

The first step in assessing whether FMLA or the Colorado FMLA protects family medical leave is to determine if the employee is eligible for protected leave under either law. This step itself has two components. First, we must determine if the employer is covered by the statutes so that any of its employees may receive FMLA protections. Second, we must determine whether the employee satisfies FMLA requirements to request protected leave.

Employer coverage under FMLA

FMLA applies to an employer if the employer employs fifty or more employees within a seventy-five mile radius of the employee’s normal work site. Traditionally most employers conduct business out of centralized locations like offices, warehouses, or retail stores. In the modern workplace many employees work remotely from home, may work traveling jobs, or split work time between multiple work sites. For these employers the analysis is more tricky and determining where an employee works for FMLA coverage purposes is necessary to determine who counts as an employee within the seventy-five mile radius.

An employee might work for an employer who has some staff covered by FMLA protections and some who are not. The employer coverage analysis is specific to each employee and that employee’s seventy-five mile radius. It is not enough to look just as how many employees the employer staffs overall.

FMLA employee eligibility

If an employee works for a covered employer then the next step is to determine whether the employee is eligible for FMLA protected leave. An employee gains FMLA protection by completing two requirements. First, the employee must have been employed by the employer for at least one year. Second, the employee must have completed at least 1,250 work hours over the course of employment with that employer. For most full time or near-full time employees, the employee will complete the work hours requirement within the first twelve months of work.

This analysis is straightforward for employees who worked a consistent year for the employer; however, it is more complicated when the employee has breaks in service. FMLA regulations describe particular rules that apply when the employee has worked partial years for the employer without a complete, continuous year of service. This extends FMLA rights to employers who hire seasonally and those who furlough employees on a regular basis.

Employer denial of FMLA and Colorado FMLA leave

It is unlawful for your employer to violate your rights to family medical leave under the Family and Medical Leave Act and the Colorado Family Care Act. Your employer may violate your rights by:

Unlawfully denying protected family medical leave under the federal or Colorado statutes;
Interfering with your ability to request family medical leave;
Interfering with your protected leave once approved;
Retaliating against you for requesting or taking protected family medical leave.

FMLA and the Colorado Family Care Act are highly technical statutes that carefully regulate most aspects of protected family and medical leave. An employer’s failure to comply with the law or intentional retaliation for an employee exercising his or her rights can carry substantial penalty. An employee may recover lost wages, liquidated damages, attorney’s fees and other relief due to a violation of the statute.

Contact Denver employment attorneys about FMLA and Colorado FMLA violations

If you believe your employer violated FMLA or the Colorado Family Care Act then you should contact Denver employment attorneys right away. An employment attorney can help you seek remedies for the employer’s bad acts. In some situations it may be possible to obtain a court order restoring you to a job or title if an employer retaliates against you for taking family medical leave. The sooner you talk to an employment attorney the sooner you can get help.

If your employer is delaying or denying FMLA leave or leave under the Colorado Family Care Act then you should talk to Denver employment attorneys immediately about your situation. Employment attorneys familiar with protected leave laws can discuss your rights and help you get the leave you are entitled to under law.

Protected leave does not automatically prevent termination from your job

by Denver Employment Lawyer4 May 20187 Sep 2022Leave a comment

Employees around the country often misunderstand that protected leave from a job is not an automatic bar from an employer terminating the employee for other reasons. The role of protected leave for a family or medical reason is to protect an employee from termination due to the leave.

Generally, employers can terminate, demote, promote, transfer, or otherwise change an employee’s job during or after a protected period of leave under federal or Colorado employment law so long as the motivation for the change is not the employee’s protected leave or the reason for the protected leave. (Assuming no other unlawful motivation exists.)

Employees facing termination or demotion while on a protected leave or immediately following a protection period of leave have good reason to be concerned that the employer’s motives are not pure. Often employers have unlawful motivations that create claims under federal or Colorado employment law for wrongful termination.

It usually is not obvious whether the employer’s action is lawful. For this reason, if you are fired during or after a period of leave from your job then you should contact employment lawyers in Denver about potential claims.

Protected leave from your job in Colorado

Colorado employees may enjoy protected family or medical leave for a variety of reasons under state or federal employment law.

These laws protect the right to return to work at the same or similar position after a protected period of leave. However, the right to return to work is not absolute under these laws. They only protect the employee’s right to return to work at the same or similar position as though the employee never took leave at all.

To put it more precisely, these employment laws protect access to limited periods of leave of absence and prohibit employers from discriminating against employees for requesting, taking, or returning from protected leave.

Laws protecting employee right to leave of absence for family and medical issues include:

Family and Medical Leave Act: FMLA protects up to twelve weeks of unpaid leave for care of the employee’s or certain family member’s serious medical condition, pregnancy, childbirth, or bonding with an adopted or foster child;
Colorado Family Care Act: Colorado FCA expands FMLA coverage for a broader range of family members;
Americans with Disabilities Act: Protects certain medical leave periods as a reasonable accommodation to a disability;
Pregnancy Discrimination Act: PDA is a federal law requiring covered employers to allow pregnancy and childbirth-related leave under the employer’s short term disability leave policy, if it has one; and
Colorado Anti-Discrimination Act: Provides similar protection for a reasonable accommodation to a disability as well as pregnancy and childbirth-related leave under the employer’s short term disability leave policy.

The length of protected leave under these laws can vary considerably and in the case of long term medical conditions there may be concurrent protection under several laws, such as FMLA, ADA and the Colorado ADA. For this reason, if you find yourself dealing with any problems with family and medical leave in Colorado then you should find a local employment lawyer right away to advise you how to deal with these issues.

Why protected leave of absence laws in Colorado do not always protect you from termination

Protected leave employment laws are designed to protect access to leave of absence for medical and family reasons, not to prevent the employer from conducting other employment practices. It is a common myth that protected leave laws absolutely protect an employee from termination during or around the leave of absence.

Employers can discharge or take other adverse employment acts during a protected leave period but risks the employee contacting an employment lawyer and pursing a claim that the employer’s termination or other detrimental act was motivated by the protected leave.

If an employer could never terminate an employee during or immediately after a protected leave period then it would lead to some unusual results:

Employees with legitimate disciplinary or performance issues could find a reason to seek FMLA leave or another protected leave to extend the job and force the employer to choose between firing the employee or enduring an expensive employment lawsuit.
Employers engaging a reduction in force would have to carve out any employees who are on, about to be on, or recently returned from protected leave from the RIF and target other employees who might be more productive or more senior, which could create other legal issues for the employer.
Unscrupulous employees looking for an easy payday could actually perform poorly enough to be on the cusp of a legitimate termination and then abuse protected leave laws to force the employer’s hand to fire them just to pursue a nuisance lawsuit.
A new wave of employment lawsuits would arise establishing rules about how much time must pass between protected leave and an unrelated termination which will make protected leave laws less specific and cost a significant figure for both employers and employees in litigation expenses.
Good employees who deserve to advance may be held back because the employer’s cost-benefit analysis favors keeping a poor performer with protected leave for fear of a related lawsuit.

This would be a losing proposition for employers and good employees while maybe helping bad employees.

When federal and Colorado protected leave laws prevent your employer from a wrongful termination

An employer generally cannot fire an employee because of the protected leave or protected leave request. That means an employer cannot:

Fire the employee in response to requesting or inquiring about taking leave protected by a federal or Colorado employment law;
Fire the employee for submitting a valid request for protected leave but insisting the leave request was invalid;
Terminate the employee while on protected leave for taking leave;
Discharge the employee while on protected leave for not performing material work during a leave period;
Terminate the employee after returning from protected leave for requesting or taking the leave of absence.

Colorado and federal employment laws generally prohibit employers from terminating an employee for the sole reason of requesting or taking protected leave or in addition to other legitimate reasons.

Sometimes employers have lawful reasons to terminate an employee but are motivated to fire the employee for lawful reasons plus the unlawful reason that the employee requested or took leave protected by law.

This is known as a mixed motive claim. In a mixed motive claim the employee’s ability to recover for damages is often limited if the employee cannot disprove that the alleged lawful reasons actually motivated the employer. However, the employee can generally still recover some damages for the employer’s unlawful motivation.

Knowing whether an employer wrongfully terminated an employee for taking a leave of absence

Wrongful termination claims involving leaves of absence can be difficult to pursue because the employer often will rely upon a defense that the discharge was based on a legitimate, unrelated business decision regardless of the truth to that defense. It may not be obvious whether the employer has a legitimate defense or whether the employee can recover a worthwhile sum based upon the facts. This is a good reason to work with an employment lawyer in Colorado to assess your case and help you pursue it.

An employee included in a layoff during a leave of absence is a common source of wrongful termination claims for FMLA and other protected leaves of absence. Employees on a protected leave generally can be a part of a reduction in force so long as the employee’s inclusion is not related to the protected leave.

Often employers do not explain why employees become part of a RIF and even when they do there is no guarantee the employer’s explanation is true. Planning for RIFs usually begins months beforehand so it may be possible to compare the timeline of the leave request and inclusion on the RIF list.

Employees may be individually fired during a protected leave of absence outside of a RIF. In these cases the employer’s explanation for the termination normally involves a performance or disciplinary issue with the employee. In these cases the employer should have a documented history of progressive discipline unless the reason for termination is particularly egregious.

It may be possible to compare how the employer treated similar employees without a protected leave of absence to see if the employer fired other employees with similar problems.

Hiring employment lawyers for wrongful termination claims in Denver, Colorado

Employment lawyers have experience dealing with these wrongful termination claims and know how to investigate and pursue these claims. In many cases the employment lawyer must assess the potential client’s claims based on access to minimal information and pursue additional documents and information through the discovery phase of litigation.

Lawyers with experience dealing with wrongful termination claims under federal and Colorado employment law are best equipped to be able to assess claims early in the process to determine whether it may be worth pursuing to that point.

If you believe you were wrongfully terminated due to a protected leave request then you should find a local employment lawyer right away to discuss your claim. Some protected leave laws require employees to take certain steps within limited time periods to pursue their claims.

FMLA Turns 25 Today

by Denver Employment Lawyer5 Feb 20187 Sep 20221 Comment

On February 5, 1993 President Clinton signed the Family and Medical Leave Act guaranteeing unpaid medical leave to a large swath of employees. The law expanded and simplified protected leave rights under the Pregnancy Discrimination Act of 1978, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, in addition to making protected unpaid medical leave available to workers for a broad range of medical issues unrelated to pregnancy or disability.

FMLA has received a single amendment in its quarter century life to include protected leave to care for injured and ill servicemembers.

However, greater opportunities exist to make protected family and medical leave available to more employees.

FMLA today

Although FMLA is now old enough to run for the House of Representatives there is still incredible pushback from employers. You don’t have to get far into a conversation with human resources professionals to start hearing about “FMLA abuse” in the same terms as tin foil hat conspiracies.

Employers regularly continue to interfere with employee FMLA rights and retaliate against employees for requesting or taking FMLA leave. We cannot be too surprised. Employers still routinely violate other labor and employment laws, some more than 100 years old.

Room for FMLA to grow

Nevertheless, while FMLA was groundbreaking for its time, opportunities remain to expand the statute to help employees in vulnerable medical and family situations. Employers may not be completely on board with FMLA’s current protections but that is no reason to fail to expand FMLA and other leave protections.

Expanded family care

Employees remain unprotected, at least under federal law, for medical leave to care for family members under the employee’s care but not immediate family as defined by FMLA or to attend school meetings for their children.

FMLA protects leave to care for spouses, children and parents only. Workers often provide care for other family members, such as grandchildren, grandparents, nieces and nephews. Under the current statutory protection, jobs remain vulnerable if an employee takes leave to care for these family members.

Reduce the required number of employees

FMLA also only protects employees of covered employers with fifty or more employees, which leaves a large portion of employees unprotected. Studies estimate around sixty percent of employees work for employers covered by the statute. Employees without FMLA protection must rely on state leave laws, other federal laws, or voluntary leave policies.

Domestic violence leave

The Family and Medical Leave Act does not provide employees protected leave to protect themselves from domestic violence. The statute protects eligible medical leave to receive medical care for domestic violence-related injuries but not to receive legal protection or obtain safety protections (such as changing locks on the home).

Without these protections domestic violence victims may have to choose running away from their home and job to avoid harm.

Expanding FMLA to include leave to protect employees from domestic violence would have the same benefits to employers and employees as other protected leave rights under the statute.

Paid family and medical leave

FMLA only protects unpaid leave–forcing many employees to balance medical needs against financial needs. The Family and Medical Leave Act allows employers to exhaust paid leave banks against FMLA leave periods but once employees exhaust their paid leave the remaining leave goes unpaid. For many workers weeks without pay can put the employee’s family in a financially precarious position.

That leaves workers choosing between caring for their health or their family’s health and the family’s financial health. Often the only choice the employee can afford is the financial.

Colorado protected leave laws

Colorado laws provide expanded rights to employees within the state, although not to the full extent many advocate for FMLA. The Colorado Family Care Act expands FMLA rights to include similar leave protections to care for a wider range of family members.

The Colorado FCA does not reduce the minimum number of employees for a covered employer but it expands the range of protected leave. Colorado law provides three days of protected leave to deal with domestic violence, stalking and sexual assault. (Colo. Rev. Stat. §24-34-402.7)

There is additional room for Colorado law to grow but Colorado employees receive greater protection than many states where state law is silent.

Colorado FMLA lawyers

Under FMLA if an employer interferes with your right to protected leave or retaliates against you for taking FMLA leave then you can sue your employer to recover for damages suffered. Often FMLA lawsuits pursue recover of lost wages but you may recover other out of pocket losses, liquidated damages and attorney’s fees.

If you believe your employer violated your employee rights under the statute then you should contact Colorado FMLA lawyers right away.