Family Medical Leave Act, or FMLA, is a federal law that protects the right to unpaid medical leave for employees. To receive protected FMLA medical leave an employee must be eligible for FMLA leave and must have a qualifying reason for leave. An employer must be a covered employer under FMLA as well. FMLA has many technical regulations that can result in an employer wrongfully denying, retaliating, or interfering with a valid FMLA request. Similarly, employees may fail to satisfy the technical requirements of the statute and not invoke rights under FMLA. If you have Colorado Family Medical Leave Act claims for retaliation or interference with FMLA then you should talk to Denver FMLA lawyers. FMLA claims can result in damages for lost wages, liquidated damages, attorneys fees and trial expenses. Colorado FMLA lawyers help employees recover these damages on FMLA claims.
In addition to FMLA claims, employees in Colorado may have separate medical leave claims under the Colorado Family Care Act (CFCA) which extends additional protections for medical leave to care for family members. These claims are similar to FMLA retaliation and interference claims. Employees who suffer retaliation or interference for requesting protected medical leave should talk to a Colorado employment lawyer right away to assess potential claims under both laws.
Table of Contents
- Protected leave under FMLA
- Covered employers in Colorado
- Eligible employees for FMLA
- Qualifying reasons for FMLA leave
- FMLA leave claims in Colorado
- Retaliation claims for FMLA
- Interference claims under FMLA
- Employment lawyers for FMLA claims
- Leave of absences and FMLA
- Leave of absences and disability discrimination laws
- FMLA and disability discrimination laws
- Care for family members under FMLA
- Colorado Family Care Act
- Concurrent leave under FMLA and Colorado FCA
- Colorado FCA and employment lawyers
Protected leave under the Family and Medical Leave Act (FMLA)
FMLA protects the right to unpaid medical leave for up to twelve weeks in a calendar year for most qualifying reasons and up to twenty-six weeks for qualifying military-related reasons. FMLA protects the right to take medical leave free from interference by the employer and to return to the same or similar job with the same pay, benefits and job assignments. An employer cannot terminate or demote an employee for taking FMLA leave. Similarly, an employer cannot cut the employee’s pay, benefits, or job assignments for taking FMLA medical leave. This includes harassment, changing schedules to less favorable times, moving the employee to a distant work station or changing the employee’s job assignments to less prestigious assignments or taking the employee off projects.
FMLA medical leave may be a continuous period of leave or intermittent leave.
An employee’s protected FMLA leave in Colorado and the rest of the nation generally cannot exceed the maximum allowed by statute but is also limited by either (1) the employee’s certification from his or her physician describing the length of time needed or (2) the employer’s voluntary agreement to extend FMLA over a period of leave longer than any certification. Once an employee exhausts the statutory leave period the employee’s leave is no longer protected by FMLA.
Covered employers for FMLA leave in Colorado
FMLA covers eligible employees of all covered employers in Colorado. Covered employers of FMLA include:
- Elementary schools
- Secondary schools
- Colorado state and local government agencies
- Federal government agencies
- Private employers with fifty or more employees
Most employees in Colorado work for private employers so the requirement of fifty employees will apply to most workers. Under FMLA a Colorado employer under 50 employees is not covered unless it is a government employer. An employee of a business under 50 employees does not enjoy FMLA leave protections. The employee might have protected leave as a reasonable accommodation for a disability, an accommodation for pregnancy or childbirth, or short term disability under other federal or Colorado laws.
Eligible employees for Family and Medical Leave Act protected leave
An employee is eligible for FMLA leave if the employee works for a covered employer and meets each of the following requirements:
- Worked for at least twelve months for the employer
- Worked at least 1250 hours in the twelve months before the leave request
- Work at a worksite that includes at least fifty employees within a seventy-five mile radius
Twelve months of work for the covered employer
Most Colorado employees requesting FMLA leave will have worked the past year for the employer and meet this eligibility requirement. However, employees may have a break in service, such as a seasonal worker, and only work for the employer a few months at a time. The employee meets this requirement so long as the employee completes twelve months of service with no more than a seven year break between service periods. Any employee who has not completed twelve months of service is ineligible for FMLA protected leave.
1250 hours of work within the past twelve months
The employee must complete 1250 hours of work for the covered employer within the preceding twelve months. This amounts to about twenty-four hours per week. A full time, forty hour employee will complete this requirement within under thirty-two weeks. The 1250 hours requirement is distinct from the twelve months of work requirement. However, an employer only has to count work hours to meet 1250 within the twelve months preceding the leave request.
Fifty employees within a seventy-five mile radius
An employer becomes a covered employer when it employs fifty employees anywhere. An employee is eligible when he or she works with fifty employees within a seventy-five mile radius of the employee’s worksite. An employee who works around fifty employees within a seventy-five mile radius works for a covered employer but an employee of a covered employer with fifty employees may not be eligible due to the location of the employee’s worksite.
This mostly becomes an issue for employees of businesses with many locations or has employees who work independently in remote locations. For example, a business might have its headquarters in Denver, Colorado where 100 employees work. The employer is a covered employer and all the employees at the Denver, Colorado headquarters are eligible under this requirement. If the business has employees at an office in Colorado Springs or Fort Collins then those employees would also be eligible under this requirement because they work within seventy-five miles of the Denver, Colorado headquarters. If the business has an office in Dallas, Texas with ten employees then the rules are different. The employer is a covered employer to the Texas employees but the employees are not eligible because they do not work within seventy-five miles of fifty employees. The Denver, Colorado office and other Colorado locations are more than seventy-five miles away.
Flight attendants and flight crews for airlines
Flight crews and flight attendants for airlines have special eligibility rules for the service hours requirement. They are eligible for hours if they worked or received pay for 60% or more of their monthly guarantee and if they have worked at least 504 hours. This is important for employees of airlines that fly through DIA in Denver, Colorado as well as the other airports in Colorado.
Qualifying reasons for FMLA leave
Employees may take FMLA leave for up to twelve weeks for qualifying reasons or twenty-six weeks for qualifying reasons related to a servicemember. The qualifying reasons for twelve weeks include:
- Treatment of serious medical condition of the employee
- Care for a close family member of the employee who has a serious medical condition
- Pregnancy and pregnancy-related medical conditions
- Bonding with a newborn child
- Bonding with a recently adopted or foster child
An employee may take up to twenty-six weeks for:
- Care of a servicemember injured or became ill on active duty who is a close family member of the employee
- An exigency related to the service in active duty of a close family member
Serious health conditions under FMLA
FMLA considers a serious health condition a medical condition that prevents the employee from performing work at all or from performing one or more of the essential functions of the job. An employee can receive FMLA leave for the serious medical condition because:
- It requires an overnight stay in a hospital or other medical care facility
- The medical condition incapacitates the individual for three or more days
- The medical condition has chronic conditions that incapacitates and requires medical care at least twice a year
- Pregnancy and pregnancy-related medical conditions
A serious health condition applies to both the employee as well as close family members. Close family members under FMLA include a spouse, parent, child or a person who acted as a parent to the employee when the employee was a child.
Bonding time under FMLA
FMLA also protects bonding time for a new child in the home whether the child became a part of the family through childbirth, adoption or foster care. This includes spending time assimilating the new child into home as well as childbirth in which the newborn may need medical care in addition to feeding, changing and other regular care. Bonding time must be taken within one year of the child entering the home. It also must be in a continuous block of leave unless the employer agrees otherwise.
Military caregiver leave under FMLA
Rules for military caregiver leave are somewhat different from all other FMLA leave reasons. A military caregiver can be a close family member or under certain circumstances next of kin beyond a close family member. Military caregiver FMLA is for a serious illness or injury arising during active duty that makes the servicemember medically unfit to perform his or her job duties. It also includes aggravation of an existing illness or injury during active duty that makes the servicemember medically unfit.
FMLA leave is also available to deal with exigencies related to the deployment of a close family member. These include making child care arrangements on behalf of the servicemember, to attend military ceremonies, to deal with the financial or legal concerns of the servicemember, spend time with a servicemember on rest periods and other reasons defined in FMLA regulations.
Colorado Family Medical Leave Act Claims
Employment lawyers in Colorado help employees pursue Family Medical Leave Act claims against their employers. The Family Medical Leave Act, or FMLA, is a federal employment law that protects the right of eligible employees to up to twelve weeks of unpaid medical leave. Upon return from protected FMLA leave an employee is entitled to return to work in the same or a similar job as though the employee had not taken leave. When an employer interferes with an employee’s request for FMLA leave or the leave itself, the employer creates an FMLA interference claim. If the employer retaliates against the employee for requesting or taking FMLA leave then the employer is liable for an FMLA retaliation claim. If you believe you have one or more Colorado Family Medical Leave Act claims then you should contact a Colorado employment lawyer right away.
Colorado Family Medical Leave Act retaliation claims
Colorado employees may also suffer retaliation for requesting or taking FMLA leave. Generally an employee is entitled to return to work after a period of FMLA leave in the same position or a similar position as the one held before the leave of absence.
A Colorado employer might retaliate against an employee for requesting or taking FMLA leave by:
- Terminating the employee
- Demoting the employee
- Causing a pay cut or loss of bonus opportunities
- Giving a poor performance review–especially one citing absences in relation to the FMLA leave of absence
- Changing the employee to less favorable work space, job responsibilities, or job opportunities
- Transferring the employee to a less prestigious position although pay or title does not change
- Harassing the employee to entice the employee to take a demotion or quit
Colorado Family Medical Leave Act interference claims
Interference claims under the Family Medical Leave Act include acts by the employer to interfere with an FMLA request or a period of FMLA leave of absence. Colorado employees may have interference claims under FMLA if the employer:
- Creating certification requirements not permitted or required by FMLA
- Contacting the employee unnecessarily or unreasonably during FMLA leave periods
- Requiring the employee to return to work before the end of approved FMLA leave periods
- Changing the employee’s schedule to interfere with intermittent FMLA leave
- Denying FMLA leave although the employee is eligible and presented a request that satisfies FMLA
- Threatening to retaliate against the employee for requesting FMLA leave so he or she does not take leave
Colorado employees who experience this behavior likely have a Family Medical Leave Act claim for interference. They should speak with a Denver employment lawyer or other Colorado employment lawyer right away.
Employment lawyers for FMLA claims in Colorado
FMLA is an important protection for employees to care for themselves and their families. Colorado employees should not have to choose between their jobs and their families’ health. When employers violate FMLA by interfering or retaliating they deprive employees of that protection. FMLA allows employees to recover for losses including lost wages, liquidated damages, attorney’s fees and trial expenses. In some cases an employee may be reinstated to a lost position.
Employees can pursue Colorado Family Medical Leave Act claims with Denver FMLA lawyers through lawsuits. Employment lawyers in Denver, Colorado can file a lawsuit within the statute of limitations for FMLA claims. Generally the statute of limitations for an FMLA claim is two years but may extend to three years if the employer’s FMLA violation was willful. Employees who work under a lawful arbitration agreement may have to file a demand for arbitration to pursue their FMLA claim. FMLA claims may be settled with the employer before or after a lawsuit has been filed. Often a settlement is a better result for Colorado employees to save the time and money of a lawsuit.
If you believe you have a Colorado Family Medical Leave Act claim then you should talk to employment lawyers right away. Employment lawyers in Colorado understand how FMLA protects employees and how to pursue remedies under the statute. If you think you have a claim it is worth researching employment attorneys in Colorado and schedule consultations with the best employment lawyers in Denver, Colorado for your needs.
FMLA and disability discrimination have a shared relationship under Colorado and federal law. The Family Medical Leave Act, FMLA, protects the right of employees to take up to twelve weeks of unpaid medical leave. Employment laws prohibiting discrimination against disabled employees require employers to provide reasonable accommodations to the disability that may include a period of leave or schedule flexibility. These two employment laws intersect and can cause problems for employers to parse out. Employees often are unaware of the overlap or how it may benefit them. Colorado employees with a need for medical leave of absence should contact employment lawyers in Colorado right away if they believe their employer has violated FMLA or disability discrimination law.
Leave of absences and FMLA
FMLA protects the right to up to twelve weeks of unpaid medical leave for eligible employees of covered employers. One reason an employee qualifies for FMLA leave is for the care of a serious medical condition. Serious medical conditions under FMLA include physical and mental impairments that render the employee incapable of performing the essential functions of the job or for treatment of such a condition. These impairments often also meet the definition of a disability under federal and Colorado law.
A leave of absence under FMLA can be useful to accommodate a disability because FMLA leave can be continuous or intermittent. This allows the employee to take a single extended period of time, intermittently receive treatment, or to reduce the work schedule during periods where the serious medical condition impairs the employee’s ability to work.
Leave of absences and disability discrimination laws
Colorado and federal employment laws on disability discrimination, such as the Americans with Disabilities Act, require employers to provide reasonable accommodations to a disability. A disability under the ADA and Colorado law is a physical or mental condition that substantially limits one or more major life activity. This is similar to the serious medical condition term in FMLA except FMLA relates specifically to the employee’s ability to work.
The EEOC and courts generally agree that continuous leave, intermittent leave and schedule adjustments can be reasonable accommodations. Federal and Colorado employment laws do not set a hard limit on the leave periods or schedule adjustments. The reasonableness of leave as an accommodation is a fact-specific test. A leave of absence for a disability may extend longer than FMLA.
FMLA and disability discrimination overlap
FMLA and disability discrimination laws often overlap under a few common circumstances, although many other situations may result in an overlap. These common circumstances include:
- When the employee has a permanent need for intermittent leave as a schedule adjustment
- The employee needs a continuous period of leave longer than twelve weeks
- The employee had a period of continuous need and needs to phase back into the job and the total leave of absence exceeds twelve weeks
In situations where an employee is an eligible employee for FMLA and a disabled employee under disability discrimination laws, the EEOC takes the position that the employee is entitled to leave protections under which ever law provides the greater benefit. This results in an overlap of employee rights rather than stacking one statutory leave of absence protection on another.
For Colorado employers this means an employee’s leave of absence request for a medical condition must be analyzed as a possible request for FMLA leave and a request for leave as a reasonable accommodation. Failure to consider both employment laws can leave the employer exposed to a claim of disability discrimination or violation of FMLA.
Colorado Family Care Act, or FCA, is a Colorado employment law that provides expanded coverage of the federal FMLA under state law. The Colorado Family Care Act provides all the same rights to medical leave under FMLA but for the care of a serious medical injury of a larger group of people considered family for an employee. Like FMLA, employees under the FCA can recover for violations of the law. If you believe your employer violated your rights under the Colorado Family Care Act then you should contact the best employment lawyers in Denver, Colorado for medical leave claims right away.
Care for a family member under FMLA
The Family and Medical Leave Act, FMLA, protects the right of eligible employees of covered employers to take up to twelve weeks of unpaid medical leave for the care of a specific set of family members who suffer from a serious health condition. A covered employer is an employer with fifty or more employees. An eligible employee has worked at least twelve months for the employer, worked at least 1250 hours in the past twelve months and works within seventy-five miles of at least fifty employees of the employer.
A serious health condition under FMLA includes illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. In addition to FMLA leave for the employee’s serious health condition an employee may also take FMLA leave for a family member that includes the employee’s:
- Person who stood in loco parentis to the employee when the employee was a child
A person stood in loco parentis to the employee if that person acted as a parent to the employee when he or she was a child by providing care, financial care, discipline and so forth.
Colorado Family Care Act
Colorado Family Care Act, enacted in 2013, intended to expand the group of family members covered by FMLA. The Colorado Family Care Act takes all of FMLA and enlarges the definition of family member. Under the Colorado FCA a family member includes a person related to the employee by:
- Legal custody
- Civil union
- In a committed, live-in relationship
The Colorado Family Care Act requires that leave under the Colorado employment law runs concurrently with FMLA. (More on this employment law problem follows.) The FCA includes children, spouses and parents but enlarges the circle of family members to include other family members such as:
- Aunts and uncles
- Nieces and nephews
- Foster children
Concurrent FMLA and Colorado Family Care Act medical leave
The Colorado Family Care Act statutory language requires leave under the FCA to run concurrently with FMLA. The intended effect of the FCA by the Colorado legislature appears to be to not expand the amount of leave under FMLA but expand the meaning of family members. This presents a problem.
The problem is that Department of Labor regulations prohibit employers from counting any form of leave against FMLA protected leave except FMLA protected leave. An employer might count a leave of absence to care for an employee’s spouse concurrently under FMLA and FCA. However, if the employee needs a leave of absence to care for an nephew then the employer may count the leave of absence against FCA but not FMLA because a nephew is not a family member under FMLA. As a result, the employee could obtain twelve weeks of FCA leave of absence to care for the nephew and then another twelve weeks to care for a spouse.
Colorado Family Care Act claims and employment law attorneys
The Colorado Family Care Act gives employees similar remedies for violations as federal law does under FMLA. The statutory language expressly duplicates the remedies under FMLA and applies them to the Colorado FCA. These include lost wages, liquidated damages, attorney’s fees and court costs as well as equitable relief. An employee who suffers a violation of both the FMLA and FCA can bring claims for interference or retaliation under both federal and Colorado employment law.
Colorado employees who believe they have claims for interference or retaliation under the FMLA or FCA should contact employment lawyers right away. Claims under FMLA and Colorado Family Care Act have statutes of limitations like other employment law claims. Denver FMLA lawyers and Colorado FMLA lawyers understand your rights under these laws and can help you understand. If you have a claim for retaliation or interference then your employment law attorneys can pursue your employer for damages and other relief. Contact employment law attorneys in Denver, Colorado to discuss your leave of absence concerns.