7 CCR 1107-3.8 - Requirements Regarding Notice to Employers

1. A claimant must schedule leave in accordance with C.R.S. § 8-13.3-505(4), and must notify their employer or employers of the need for leave in accordance with C.R.S. § 8-13.3-505(5). For individuals on intermittent leave, these scheduling and notice requirements apply to each absence. Notification need not include any specific terms or reference specific provisions of the FAMLI Act or its implementing regulations, but must reasonably implicate qualifying leave under the FAMLI Act to satisfy the notification requirement at C.R.S. § 8-13.3-505(5).

2. If the need for leave is foreseeable, a claimant must consult with the employer and make a reasonable effort to schedule leave so as not to unduly disrupt the employer's operations. If the claimant does not do so, the employer may initiate discussions with the employee and require the employee to attempt to make such arrangements, subject, where applicable, to the approval of the health care provider. An undue disruption requires significant difficulty or expense in relation to the resources and specific circumstances of the employer.

3. If the necessity for leave is not foreseeable, or providing 30 days' notice is not possible, the individual shall provide the notice as soon as practicable. As soon as practicable means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case. When an employee becomes aware of a need for leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. In all cases, however, the determination of when an employee could practicably provide notice must take into account the individual facts and circumstances.

4. A claimant's failure to schedule leave in accordance with C.R.S. § 8-13.3-505(4) or properly notify their employer or employers of the need for leave in accordance with C.R.S. § 8-13.3-505(5) does not change the Division's obligations to pay benefits on an approved claim within two weeks after the claim is filed under C.R.S. § 8-13.3-505(2) and these rules.

5. The Division shall not deny a claimant benefits for a failure to comply with C.R.S. § 8-13.3-505(4) or (5).

6. Employers may require the notice to contain the anticipated start time, anticipated duration, and where applicable, anticipated frequency of leave.

7. Such notification must be in the same manner as the claimant and employer typically communicate work availability, and absent unusual circumstances, must comply with the employer's usual and customary notice and procedural requirements for leave, unless those requirements are contrary to rights, benefits, or protections afforded to the claimant under the FAMLI Act and its implementing regulations.

8. If an employer fails to post the program notice in accordance with C.R.S. § 8-13.3-511 and these rules, the employer may not punish or discipline an employee for failing to provide notice in accordance with C.R.S. § 8-13.3-505(5).

9. By submitting an application for benefits, the claimant consents to the Division sharing with the employer, upon the employer's request, limited information necessary for the employer to coordinate FAMLI benefits with other benefits for which the claimant is eligible, in accordance with the information-sharing provisions of 7 CCR 1107-4, including the wage replacement amount and the reason for leave. The employer shall not request, and the Division will not provide, information that is not absolutely necessary for such benefit coordination, and a request for information not absolutely necessary for such benefit coordination may constitute discrimination, retaliation, and/or interference in violation of C.R.S. § 8-13.3-509. The employer must store and maintain the confidentiality of such information in accordance with all applicable federal, state, and local laws and regulations, and failure to do so may constitute discrimination, retaliation, and/or interference in violation of C.R.S. § 8-13.3-509.

10. Records and documents relating to medical certifications, recertifications, or medical histories of employees or employees' family members created for purposes of the FAMLI must be maintained as confidential medical records in separate files/records from the usual personnel files. If the Genetic Information Nondiscrimination Act of 2008 (GINA) is applicable, records and documents created for purposes of FAMLI containing family medical history or genetic information as defined in GINA shall be maintained in accordance with the confidentiality requirements of Title II of GINA (see 29 CFR 1635.9). If the Americans with Disabilities Act (ADA) is also applicable, such records should be maintained in conformance with ADA confidentiality requirements, except that:

A. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations;

B. First aid and safety personnel may be informed if the employee's physical or medical condition might require emergency treatment; and

C. Division and/or other government officials investigating compliance with the FAMLI Act should be provided relevant information upon request.

Notes

7 CCR 1107-3.8

45 CR 18, September 25, 2022, effective 10/15/2022 46 CR 23, December 10, 2023, effective 1/1/2024