4 CCR 801-1, ch. 5 - Time Off
Authority for rules promulgated in Chapter 5, Time Off, is found in:
State of Colorado Constitution Article XII, Section 13, The Family Medical Leave Act (FMLA), Colorado Paid Family and Medical Leave Insurance (FAMLI) Act, Americans with Disabilities Act (ADA), Family Care Act (FCA), Uniformed Services Employment and Reemployment Rights Act (USERRA), The Patient Protection and Affordable Care Act (PPACA), commonly called the Affordable Care Act (ACA), Healthy Families and Workplace Act, the Public Health Emergency Whistleblower Act and 26 U.S.C. 63.
State of Colorado Revised Statutes (C.R.S.) § 1-6-115, 1-6-122, 1-7-102, 8-13.3-401, 8-13.3-501, 8-40-101, 14-2-101, 14-15-103, 24-11-101, 24-11-112, 24-18-102, 24-33.5-825, 24-50-104, 24-50-109.5, 24-50-401, 24-50-1104, 28-1-104, 28-3-601, 28-6-602, 28-3-607, 28-3-609, and 28-3-610.
General Principles
5-1. Employees are required to work their
established work schedule unless on approved leave. Employees are responsible
for requesting leave as far in advance as possible. The leave request shall
provide sufficient information to determine the type of leave. (5/1/10)
A. The appointing authority shall respect the
employee's privacy rights when requesting adequate information to determine the
appropriate type of leave. (02/2017)
B. Appointing authorities are responsible for
approving all leave requests and for determining the type of leave granted,
subject to these rules and any additional departmental leave procedures.
Departmental procedures shall be provided to employees. (02/2017)
C. Except for paid sick leave or public
health emergency leave, use of any other leave that is not approved by the
appointing authority may result in the denial of paid leave and/or corrective
or disciplinary action. (01/01/2021)
D. Mandates to maintain a minimum balance of
annual leave is not permitted except under a leave sharing program or a
corrective or disciplinary action. (12/1/2023)
1. Paid sick leave, Family Medical Leave
(FML) or public health emergency leave cannot be counted as an absence that may
lead to corrective or disciplinary action against an employee, unless the
employee uses the leave for purposes other than the allowable reason.
(09/2022)
5-2. Paid leave is to be exhausted before an
employee is placed on unpaid leave, unless the reason for leave does not
qualify for the type of leave available, or during a mandatory or voluntary
furlough. (02/2017)
5-3.
Departments shall keep accurate leave records in compliance with rule and law
and be prepared to report the use of any type of leave when requested by the
Director. (5/1/10)
Accrued Paid Leave
5-4. Annual leave is for an employee's
personal needs and use is subject to the approval of the appointing authority.
The appointing authority may establish periods when annual leave will not be
allowed, or shall be taken, based on business necessity. These periods cannot
create a situation in which the employee does not have a reasonable opportunity
to use requested leave that will be subject to forfeiture. If the department
cancels approved leave that results in forfeiture, the forfeited hours shall be
paid before the end of the fiscal year. (5/1/10)
A. Due to the declaration of a state of
emergency by the Governor, as defined in the Colorado Disaster Emergency Act,
if annual leave was denied, canceled or the employee was not given reasonable
opportunity to use the requested annual leave, resulting in annual leave being
subject to forfeiture under rule, up to eighty (80) hours of leave over the
maximum accrual allotment may be carried over to the next fiscal year in lieu
of payment. The over accrued annual leave amount (up to eighty (80) hours) will
roll over to the next fiscal year on July 1 and will be available to the
employee to use. This amount will not carry over for a second fiscal year. Any
annual leave hours over the maximum accrual amount not carried over in this
Rule 5-4.(A) and subject to forfeiture shall be paid out to the employee before
the end of the fiscal year. (08/01/2020)
5-5. Sick leave is for health reasons,
including mental or physical illness, injury, a health condition, diagnostic
and preventative examinations, treatment, and recovery. Sick leave may also be
used for safety reasons and after the death of a family member. Accrued sick
leave may be used for the following:
A. The
employee or the employee's family members (related by blood, adoption,
marriage, or civil union) including a child to whom the employee stands
in loco parentis or a person who stood in loco
parentis to the employee when the employee was a minor, domestic
partners, in-laws, step relatives and for a person for whom the employee is
responsible for providing or arranging health or safety-related care. Special
consideration will also be given to any other person whose association with the
employee is similar to a family member. (01/01/2021)
B. An injured military service member as
established under Rule 5-20 (F), legal dependent, or a person in the household
for whom the employee is the primary caregiver. (04/01/2020)
C. Appointing authorities may use discretion
to send employees home for an illness or injury that impacts the employee's
ability to perform the job or the safety of others.
1. Sick leave shall be charged
first;
2. Annual leave shall be
charged if sick leave is exhausted; then
3. Unpaid leave if both annual and sick leave
are exhausted. (01/01/2021)
D. Employees shall provide the State's
authorized form (or other official document containing the same information)
from a health care provider for an absence of more than three (3) consecutive
full working days for any health reason or the use of sick leave shall be
denied. Appointing authorities have the discretion to require the State's
authorized form (or other official document containing the same information)
for absences of less than three (3) days when the appointing authority has a
reasonable basis for suspecting abuse of sick leave. (02/2017)
1. The completed official form or document
shall be returned within fifteen (15) days from the appointing authority's
request. (02/2017)
2. Failure to
provide the State's authorized form (or other official document containing the
same information) may result in corrective/disciplinary action. Appointing
authorities have the discretion to approve other forms of leave if sick leave
is denied. (02/2017)
E.
When an employee or employee's family member is a victim of domestic abuse,
stalking, sexual assault, harassment or any other crime related to domestic
violence and needs to seek medical attention, mental health care or other
counseling, or victim services including legal services or relocation.
(05/15/2022)
F. Due to inclement
weather, power/heat/water loss, or other unexpected occurrence, the employee
needs to either (a) evacuate their residence, or (b) care for a family member
whose school or place of care was closed. (12/1/2023)
G. When the employee needs to grieve, attend
funeral services or a memorial, or deal with financial and legal matters that
arise after the death of a family member. This reason for sick leave does not
supplant an employee's eligibility and use of approved bereavement leave under
Rule 5-12. (12/1/2023)
Exhaustion of Leave and Administrative Discharge
5-6. If an employee has exhausted all
credited paid leave and is unable to return to work, unpaid leave may be
granted or the employee may be administratively discharged by written notice
following a good faith effort to communicate with the employee. Administrative
discharge applies only to exhaustion of leave. (11/1/2019)
A. The notice of administrative discharge
shall inform the employee of appeal rights and the need to contact the
employee's retirement plan on eligibility for retirement.
B. An employee cannot be administratively
discharged if FML, employment protection under Family Medical Leave Insurance,
state family medical leave, or short-term disability leave (includes the thirty
(30) day waiting period) apply, or if the employee is a qualified individual
with a disability under the ADA who can reasonably be accommodated without
undue hardship. (11/1/2019)
C. A
certified employee who has been discharged under this rule and subsequently
recovers has reinstatement privileges.
5-7. Table (08/01/2020)
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Monthly Leave Earning, Accrual, Payout, and Restoration for Permanent Employees |
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Annual Leave |
Sick Leave**** |
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Years of Service* |
Hrs. / Mon. |
Max. Accrual** |
Payout |
Hrs./Mon. |
Max. Accrual*** |
Restoration |
Payout |
|
Years 1 - 3 (01 - 36 Months) |
8 |
192 hours |
Upon termination or death, unused leave is paid out up to the maximum accrual rate. |
6.66 |
360 hours |
Previously accrued sick leave up to three hundred and sixty (360) hours is restored when eligible for reinstatement or reemployment. |
Upon death or if eligible to retire, one quarter (1/4) of unused leave paid out to the maximum accrual rate. PERA's age and service requirements under the Defined Benefit plan are applied regardless of the plan actually enrolled in. |
|
Years 4 - 5 (37 - 60 Months) |
9 |
216 hours |
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Years 6 - 10 (61 - 120 Months) |
11 |
264 hours |
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Years 11 -15 (121 - 180 Months) |
13 |
312 hours |
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Year 16 or Greater (181 or more Months) |
16 |
384 hours |
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* Years of service is computed from the 1st calendar day of the month following the hire date; except if the employee began work on the 1st working day of a month, include that month in the count. Employees with prior permanent state service, in or out of the state personnel system, earn leave based on the total whole months of service, excluding temporary assignments. ** Over-accrued amounts are forfeited at the beginning of the new fiscal year (July 1st) except when Rule 5-4. A. is applicable. |
*** Over-accrued sick leave up to eighty (80) hours is converted to annual leave each new fiscal year (July 1st) at a five to one (5:1) ratio (five (5) hours of sick converts to one (1) hour annual leave). An employee may have an individual maximum accrual that is greater than three hundred and sixty (360) hours if continuously employed in the state personnel system prior to 7/1/88. Maximum accrual for these employees is calculated by adding three hundred and sixty (360) hours to the leave balance on 6/30/88. |
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**** During the declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, sick leave balances may go negative up to forty (40) hours once all accrued sick, annual leave, and compensatory time is exhausted. Subsequent sick leave accruals will be credited to the negative balance. If an employee separates before the negative balance is recovered, it will be deducted from their final paycheck. |
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General Provisions |
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Employees shall be at work or on paid leave to earn monthly leave. Leave is credited on the last day of the month in which it is earned and is available for use on the first day of the next month, subject to any limitations elsewhere in Chapter 5, Time Off. A terminating employee shall be compensated for annual leave earned through the last day of employment. Part-time employees who work regular, non-fluctuating schedules earn leave on a prorated basis based on the percentage of the regular appointment, rounded to the nearest one, one hundredth (1/100) of an hour. Leave for part-time employees who work irregular, fluctuating schedules and full-time employees who work or are on paid leave less than a full month is calculated by dividing the number of hours paid by the number of work hours in the monthly pay period. The percentage is then multiplied by the employee's leave earning rate to derive the leave earned. Overtime hours are not included in leave calculations. Leave payouts at separation are calculated using the annualized hourly rate of pay (annual salary divided by two thousand eighty (2080) hours for full- time employees), and employees are only eligible for the sick leave payout one (1) time - initial eligibility for retirement. Forfeiture of leave as a disciplinary action or a condition of promotion, demotion, or transfer is not allowed. Borrowing against any leave that may be earned in the future or "buying back" leave already used is not allowed, except during a declaration of a state of emergency by the Governor, as defined in the Colorado Disaster Emergency Act, as indicated above. Use of annual leave cannot be required for an employee being laid off. Make Whole: When an employee is receiving workers' compensation payments, accrued paid leave is used to make the employee's salary whole in an amount that is closest to the difference between the temporary compensation payment and the employee's gross base pay, excluding any pay differentials. Leave earning is not prorated when an employee is being made whole. Short and Long Term Disability: Employees are required to use accrued paid leave during the thirty (30) day waiting period for short-term disability benefits, including the use of accrued annual leave and/or compensatory time once accrued sick leave has been exhausted. When an employee begins receiving disability payments, the employee may choose to use accrued paid leave to make their salary whole in an amount that is closest to the difference between the disability benefit payment and the employee's gross base pay, excluding any pay differentials. Employees who elect to be made whole will use accrued sick leave first, then annual leave or compensatory time as available. Employees shall not use negative sick leave to be made whole. Leave earning is not prorated when an employee is being made whole. |
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5-7.
A. Table (01/01/2021)
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Factor Rate Earning, Accrual, Payout, and Restoration for Temporary Employees |
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Sick Leave |
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Hourly Accrual / Biweekly Pay |
Cap* |
Restoration |
Payout |
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.033/hour 30 hours x .033 = 1 hour Biweekly Pay Period 80 hours x .033 = 2.64 hours |
48 Hours |
Previously accrued sick leave up to forty-eight (48) hours is restored when eligible for temporary rehire or hired permanently. |
Not applicable. |
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* Up to a cap of 48 hours of paid leave may be accrued in the fiscal year. Leave is no longer accrued once the cap is reached. |
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General Provisions : Temporary employees shall be at work or on paid leave to earn paid sick leave. Leave is credited on the last day of the biweekly pay period in which it is earned and is available for use on the first day of the following biweekly pay period. Sick leave may be requested and used, subject to the general principles, sick leave, Family Medical Leave Act, and public health emergency leave rules of this Chapter 5, Time Off. |
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Leave Sharing
5-8. Leave sharing allows for the transfer of
annual leave between permanent state employees for an unforeseeable
life-altering event beyond the employee's control, and is subject to the
discretionary approval of a department head. Departments shall develop and
communicate their programs prior to use, including criteria for qualifying
events. The authority to approve leave sharing shall not be delegated below the
department head without advance written approval of the Director.
(02/2017)
5-9. Employees shall have
at least one (1) year of state service to be eligible. Leave sharing is not an
entitlement even if the individual case is qualified. Donated leave is not part
of the leave payout upon termination or death. (5/1/10)
A. Donated leave is allowed for a qualifying
event for the employee or the employee's immediate family member as defined
under Rule 5-5. In order to use donated leave, the employee shall first exhaust
all applicable paid leave and compensatory time and shall not be receiving
short-term disability or long-term disability benefit payments. If all leave is
exhausted, donated leave may be used to cover the leave necessary during the
thirty (30) day waiting period for short-term disability benefit payments. The
transfer of donated leave between departments is allowed only with the approval
of both department heads. (02/2017)
Holiday Leave
5-10. Permanent full-time employees employed
by the state when the holiday is observed are granted eight (8) hours of paid
holiday leave (prorated for permanent part-time employees) to observe each
legal holiday designated by law, the Governor, or the President. Appointing
authorities may designate alternative holiday schedules for the fiscal year. If
a holiday occurs when an employee is on short or long-term disability and is
being paid for the disability benefit, the employee will be paid through those
benefits and not be granted eight (8) hours of holiday leave. (04/01/2020)
A. Employees may submit a request to their
appointing authorities to observe another day off in lieu of any of the legal
holidays in the same fiscal year.
1.
Department heads have the discretion to grant employee requests to observe
César Chávez day, March 31, in lieu of another holiday in the
same fiscal year. The department shall be open and at least minimally
operational for both days and the employee shall have work to
perform.
B. Each
department shall establish an equitable and consistent policy to ensure that
all permanent employees are granted their full complement of holidays earned
each fiscal year.
1. If an employee is unable
to take the alternate holiday off due to business necessity, they shall be paid
out eight (8) hours of holiday leave (prorated for permanent part-time
employees) at the end of the same fiscal year.
C. To ensure any employee that is required to
work, including voluntarily scheduled to work and approved by a department
head, on any legal holiday described in §
24-11-101, C.R.S. receives their
full complement of holidays, the department shall apply the following
alternatives:
1. Exempt employees required to
work on the observed legal holiday shall be granted an alternate day off in the
same fiscal year.
2. Non-exempt
employees required to work on the observed legal holiday shall receive one of
the following alternatives:
i. An alternate
day off in the same fiscal year, as requested by the employee; or
ii. Pay at one and one-half (1 1/2)
times their base salary's hourly rate; or
iii. Corresponding compensatory time for all
hours worked.
Other Employer-Provided Leaves
5-11. The
types of leave in this section do not accrue, carry over, or pay out.
(5/1/10)
5-12. Bereavement leave is
for an employee's personal needs and use is subject to the approval of the
appointing authority. The appointing authority may provide up to forty (40)
hours (prorated for part-time work or unpaid leave in the month) of paid leave
to permanent employees for the death of a family member or other person.
Employees are responsible for requesting the amount of leave needed.
Documentation may be required when deemed necessary by the appointing
authority. (02/2017)
5-13. Military
leave provides up to one hundred twenty (120) hours in a fiscal year to
permanent employees who are members of the National Guard, military reserves,
or National Disaster Medical Service to attend the annual encampment or
equivalent training or who are called to active service, including declared
emergencies. Unpaid leave is granted in accordance with the Uniformed Services
Employment and Reemployment Rights Act (USERRA) after exhaustion of the one
hundred twenty (120) hours. The employee may request the use of annual leave
before being placed on unpaid leave. (04/01/2020)
A. Notice may be written or verbal and should
be in advance of the leave unless unreasonable or precluded by military
necessity. Required documentation shall be submitted in advance of the leave or
upon the return to work in the form of military orders, estimates of military
entitlements, military leave earning statements, correspondence from a
commanding officer, or other forms that may be verified. (01/01/2021)
B. In the case of a state emergency, the
employee shall return upon release from active duty. In the case of federal
service, the employee shall notify the appointing authority of the intent to
return to work, return to work, or may need to apply to return, and is entitled
to the same position or an equivalent position, including the same pay,
benefits, location, work schedule, and other working conditions. This leave is
not a break in service. (02/2017)
5-14. Jury leave provides paid leave to all
employees; however, temporary employees receive paid leave for a maximum of
three (3) days of jury leave. Jury pay is not turned over to the department.
Proof may be required. (02/2017)
5-15. Administrative leave may be used to
grant paid time when the appointing authority wishes to release employees from
their official duties for the good of the state. In determining what is for the
good of the state, an appointing authority shall consider prudent use of
taxpayer and personal services dollars and the business needs of the
department. (02/2017)
A. Activities performed
in an official employment capacity, including job-related training and
meetings, voluntary training, conferences, participation in hearings or
settlement conferences at the direction of the Board or Director, and
job-related testimony in court or official government hearings required by an
appointing authority or subpoena are work time and not administrative leave.
Administrative leave is not intended to be a substitute for corrective or
disciplinary action or other benefits and leave. (02/2017)
B. Administrative leave may be granted for
the following: (02/2017)
1. Up to five (5)
days for local or fifteen (15) days for national emergencies per fiscal year to
employees who are certified disaster service volunteers of the American Red
Cross. (02/2017)
2. One (1) period
of administrative leave for the initial call up to active military service in
the war against terrorism of which shall not exceed ninety (90) days and
applies after exhaustion of paid military leave. Administrative leave is only
used to make up the difference between the employee's base salary (excluding
premiums) and total gross military pay and allowances. The employee shall
furnish proof of military pay and allowances. This leave does not apply to
regular military obligations such as the annual encampment and training.
(02/2017)
3. Volunteering in
community or school activities. A department shall adopt and communicate a
policy regarding the amount of leave available, employee eligibility, and
process for requesting and approving leave. (04/01/2020)
4. Employee recognition for special
accomplishments or contributions in accordance with the department's
established incentive plan. (02/2017)
C. Administrative leave shall be granted for
the following: (02/2017)
1. Two (2) hours to
participate in general elections if the employee does not have three (3) hours
of unscheduled work time during the hours the polls are open.
(02/2017)
2. Up to two (2) days per
fiscal year for organ, tissue, or bone donation for transplants.
(02/2017)
3. To serve as an
uncompensated election judge unless a supervisor determines that the employee's
attendance on Election Day is essential. The employee shall provide evidence of
service. (02/2017)
4. Up to fifteen
(15) days in a fiscal year when qualified volunteers or members of the Civil
Air Patrol are directed to serve during a declared local disaster, provided the
employee returns the next scheduled workday once relieved from the volunteer
service. (02/2017)
D.
Administrative leave that exceeds twenty (20) consecutive working days shall be
reported to the department head and the Director. (01/01/2021)
5-16. Paid family medical leave
(PFML) provides permanent full-time employees up to one hundred sixty (160)
hours of paid leave (prorated for permanent part-time employees) per rolling
twelve (12) month period when employees are eligible and qualify for unpaid,
job protected Family Medical Leave (FML). PFML supplements and runs
concurrently with FML and the short-term disability waiting period. The
exception is the qualifying reasons for victim protection leave as prescribed
in C. of this rule. (01/01/2021)
A. PFML shall
be used before accrued paid leave except when an employee elects to use PFML to
bond with their newborn child or for a newly placed adopted or foster child
within twelve (12) months after the birth or placement as allowed under the
Family Medical Leave Act (FMLA).
B. Employees who work in the same department
or division as his or her spouse, partners in a civil union or domestic
partnership are each entitled to PFML when they are eligible and qualify for
FML.
C. PFML may be used when an
employee or an employee's family member is a victim of domestic abuse,
stalking, sexual assault, harassment, or any other crime related to domestic
violence and needs to seek medical attention, mental health care or other
counseling, or victim services including legal services or relocation.
1. An employee must meet the eligibility
requirements for FML per rules 5-20 and 5- 21, to qualify for PFML for domestic
violence related reasons. However, the use of PFML for domestic violence
related reasons does not automatically qualify an employee for FML.
2. All information related to the leave shall
be confidential and maintained in separate confidential files with limited
access.
D. Injury
leave, leave under the make whole policy for workers compensation, and
emergency public health leave are excluded from PFML.
E. Retaliation against an employee is
prohibited; however, this rule does not prohibit adverse employment action that
would have otherwise occurred had the leave not been requested or
used.
5-17. Unpaid leave
may be approved by the appointing authority unless otherwise prohibited. The
appointing authority may also place an employee on unpaid leave for
unauthorized absences and may consider corrective and/or disciplinary action.
Probationary and trial service periods are extended by the number of days on
unpaid leave and may be extended for periods of paid leave. The amount of
unpaid leave for employees paid on a monthly pay cycle is calculated based on
the monthly salary multiplied by the number of unpaid leave hours divided by
the number of hours in the pay period. The amount of unpaid leave for nonexempt
employees paid on a biweekly pay cycle is calculated based on the hourly pay
rate multiplied by the number of unpaid leave hours. The amount of unpaid leave
for exempt employees paid on a biweekly pay cycle is calculated based on the
biweekly salary multiplied by the number of unpaid leave hours divided by the
number of hours in the pay period. (11/1/2019)
A.
Short-term
disability (STD) leave is a type of unpaid leave of up to six (6)
months while either state or PERA STD benefit payments are being made. To be
eligible for this leave, employees shall have one (1) year of service and an
application for the STD benefit shall be submitted within thirty (30) days of
the beginning of the absence. The employee shall also notify the department at
the same time that a benefit application is submitted to the insurance
provider. (08/01/2020)
B.
Voluntary furlough is unpaid job protection granted
for up to seventy two (72) workdays per fiscal year when a department head
declares a budget deficit in personal services. The employee may request such
absence to avoid more serious position reduction or abolishment. Employees earn
sick and annual leave and continue to receive service credit as if the furlough
had not occurred.
C. Repealed.
(01/01/2021)
D.
State
family medical leave is unpaid job protection granted for up to
forty (40) hours subsequent to FML. To be eligible for this leave, the employee
shall be eligible for FML, see Rule 5-20. Employees do not need to apply for
state family medical leave separately.
5-18. Parental Academic leave. Departments
may provide up to eighteen (18) hours (prorated for part- time) in an academic
year for parents or legal guardians to participate in academic-related
activities. A department shall adopt and communicate a policy on whether the
leave will be unpaid or paid, the amount and type of paid leave, and
specifically the substitution of annual leave or use of administrative leave.
(02/2017)
Family/Medical Leave (FML)
5-19. The state is considered a single
employer under the Family and Medical Leave Act (FMLA) and complies with its
requirements, the Family Care Act (FCA), and the following rules for all
employees in the state personnel system. Family/medical leave cannot be waived.
(02/2017)
A. The FCA provides unpaid leave to
eligible employees to care for their partners in a civil union or domestic
partnership who have a serious health condition and is administered consistent
with FML. (02/2017)
5-20. FML is granted to eligible employees
for the following conditions: (02/2017)
A.
Birth and care of a child and shall be completed within one (1) year of the
birth; (02/2017)
B. Placement and
care of an adopted or foster child and shall be completed within one (1) year
of the placement; (02/2017)
C.
Serious health condition of an employee's parent, child under the age of
eighteen (18), an adult child who is disabled at the time of leave, spouse,
partner in a civil union, or registered domestic partner for physical care or
psychological comfort; see Chapter 1, Organization, Responsibilities, Ethics,
Payroll Deduction, and Definitions, for the definition of serious health
condition and ADA definition for disability; (02/2017)
D. Employee's own serious health condition;
(02/2017)
E. Active duty military
leave when a parent, child, or spouse experiences a qualifying event directly
related to being deployed to a foreign country; or (02/2017)
F. Military caregiver leave for a parent,
child, spouse, or next of kin who suffered a serious injury or illness in the
line of duty while on active duty. Military caregiver leave includes time for
veterans who are receiving treatment within five (5) years of the beginning of
that treatment. (02/2017)
5-21. To be eligible for FML, an employee
shall have twelve (12) months of total state service as of the date leave will
begin, regardless of employee type. A state temporary employee shall also have
worked one thousand two hundred fifty (1250) hours within the twelve (12)
months prior to the date leave will begin. Time worked includes overtime hours.
(11/1/2019)
A. Full-time employees will be
granted up to four hundred eighty (480) hours of FML per rolling twelve (12)
month period. Once eligible for FML, the employee is also eligible for up to an
additional forty (40) hours of state family medical leave. The amount of leave
is determined by the difference of five hundred twenty (520) hours and any FML
or state family medical leave taken in the previous twelve (12) month period
and is calculated from the date of the most recent leave. The amount of leave
is prorated for part-time employees based on the regular appointment or
schedule. Any extension of leave beyond the amount to which the employee is
entitled is not FML, or state family medical leave, see Rule 5-1 B.
(11/1/2019)
5-22.
Military caregiver leave is a one (1) time entitlement of up to one thousand
forty (1040) hours (prorated for part-time) in a single twelve (12) month
period starting on the date the leave begins. While intermittent leave is
permitted, it does not extend beyond the twelve (12) month period. In addition,
the combined total for military caregiver, state family medical leave, and all
other types of FML shall not exceed one thousand forty (1040) hours.
(11/1/2019)
5-23. All other types
of leave, compensatory time, and make whole payments under short-term
disability and workers' compensation run concurrently with FML and state family
medical leave and do not extend the time to which the employee is entitled. The
employee shall use all accrued paid leave subject to the conditions for use of
such leave before being placed on unpaid leave for the remainder of FML and
state family medical leave. An employee on FML or state family medical leave
cannot be required to accept a temporary "modified duty" assignment even though
workers' compensation benefits may be affected. (08/01/2020)
5-24. Unpaid leave rules apply to any unpaid
FML and state family medical leave except the state continues to pay its
portion of insurance premiums. An employee's condition that also qualifies for
short-term disability benefits shall comply with the requirements of that plan.
(11/1/2019)
5-25. Employer
Requirements. The appointing authority, human resources director, or FMLA
coordinator shall designate and notify the employee whether requested leave
qualifies as FML based on the information provided by the employee, regardless
of the employee's desires. Departments shall follow all written directives and
guidance on designation and notice requirements. (02/2017)
5-26. Employee Requirements. Written notice
of the need for leave shall be provided by the employee thirty (30) days in
advance. If an employee becomes aware of the need for leave in less than thirty
(30) days in advance, the employee shall provide notice either the same day or
the next business day. Failure to provide timely notice when the need for leave
is foreseeable, and when there is no reasonable excuse, may delay the start of
FML for up to thirty (30) days after notice is received as long as it is
designated as FML in a timely manner. Advance notice is not required in the
case of a medical emergency. In such a case, an adult family member or other
responsible party may give notice, by any means, if the employee is unable to
do so personally. (5/1/10)
5-27.
The employee shall consult with the appointing authority to: establish a
mutually satisfactory schedule for intermittent treatments and a periodic
check-in schedule; report a change in circumstances; make return to work
arrangements, etc. (5/1/10)
5-28.
Employees shall provide proper medical certification, including additional
medical certificates and fitness-to-return certificates as prescribed in Rules
5-36 through 5-39. If the employee does not provide the required initial and
additional medical certificates, the leave will not qualify as FML and shall be
denied. (02/2017)
Family and Medical Leave Insurance (FAMLI) Program (01/01/2024)
5-29.
The Division of Family and Medical Leave Insurance (FAMLI) within the Colorado
Department of Labor and Employment administers the FAMLI program, determination
of claims, eligibility and approval or denial of the FAMLI benefit and leave,
and appeals of determinations and appeals in accordance with CRS 8-13-3-501.
5-30. FAMLI leave and/or benefits
may be approved for the following conditions:
A. Because of birth, adoption or placement
through foster care, or caring for a new child during the first year after the
birth, adoption or placement of that child;
B. Caring for a family member (as defined by
the program) with a serious health condition;
C. The employee's own serious health
condition (as defined by the program);
D. Because of any qualifying exigency leave
(as defined by the program);
E.
Has a need for safe leave (as defined by the program).
5-31. To receive FAMLI leave and/or benefits,
an employee shall meet all eligibility criteria of the program, file a claim
with the FAMLI Division, and be approved by the program.
5-32. All other types of leave, compensatory
time, and make whole payments under short-term disability run concurrently with
FAMLI and do not extend the time to which the employee is entitled. The
employee may elect in writing to use their accrued paid leave, subject to the
conditions for use of such leave, in order to make whole their FAMLI benefit.
A. Should the reason for FAMLI leave also
qualify under the Family and Medical Leave Act
B. (FMLA) and/or the Family Care Act (FCA),
the leaves shall run concurrently.
C. Employees shall provide proper medical
certification, including additional medical certificates and fitness-to-return
certificates as prescribed in Rules 5-36 through 5-39. If the employee does not
provide the required initial and additional medical certificates, the leave
will not qualify as FML and shall be denied as such.
D. Unpaid leave rules apply to any FAMLI
leave, except the state continues to pay its portion of insurance premiums. An
employee's condition that also qualifies for short-term disability benefits
shall comply with the requirements of that plan.
5-33. Employer Requirements. The appointing
authority, human resources director, or FMLA coordinator shall notify the
employee of the program upon hire and upon learning of a condition under Rule
5-30, based on the information provided by the employee and in accordance with
the program's requirements. The employer shall not take retaliatory personnel
action or count paid FAMLI leave taken as an absence that may lead to or result
in discipline, discharge, demotion, suspension or any other adverse reaction.
A. A FAMLI benefit recipient who has been
employed with the state for at least 180 days prior to the commencement of
FAMLI leave, shall be restored to their position (or an equivalent position)
upon return from leave.
5-34. Employee Requirements. Written notice
of intent to file a FAMLI claim shall be provided by the employee thirty (30)
days in advance of the start of leave. If an employee becomes aware of the need
to file a FAMLI claim less than thirty (30) days in advance, the employee shall
provide notice either the same day or the next business day. The employee shall
work with their department to actively elect or waive in writing to make whole
their FAMLI benefit using their accrued paid leave.
5-35. The employee shall consult with the
appointing authority to: establish a mutually satisfactory schedule for
intermittent treatments and a periodic check-in schedule; report a change in
circumstances; make return to work arrangements, etc.
Medical Certificates
5-36. Employees shall provide the State's
authorized medical certification form (or other official document containing
the same information) when initiating an FML leave request. Appointing
authorities have the discretion to require periodic medical certification to
determine if FML continues to apply or when the appointing authority has a
reasonable basis for suspecting leave abuse. Medical certification for FML may
be required for the first leave request in an employee's rolling twelve (12)
month period. Additional medical certification may be required every thirty
(30) days or the time period established in the initial certification,
whichever is longer, unless circumstances change or new information is
received. (02/2017)
A. The medical
certification shall be completed by a health care provider as defined in
federal law. The completed medical certification shall be returned within
fifteen (15) days from the appointing authority's request. If it is not
practical under the particular circumstances to provide the requested medical
certification within fifteen (15) days despite the employee's diligent, good
faith efforts, the employee shall provide the medical certification within a
reasonable period of time involved, but no later than thirty (30) calendar days
after the initial date the appointing authority requested such medical
certification. (02/2017)
B. Failure
to provide the medical certification shall result in denial of leave and
possible corrective/disciplinary action. (7/1/13)
5-37. When incomplete medical certification
is submitted, the employee shall be allowed seven (7) days to obtain complete
information, absent reasonable extenuating circumstances. (7/1/13)
A. Following receipt of the information or
the seven (7) days from which it was requested, the department's human
resources director or FMLA coordinator may contact the health care provider for
purposes only of clarification and authentication of the medical certification.
The employee's written permission is required prior to requesting
clarification, but is not needed for authentication. (12/1/2023)
5-38. When medical certification
is submitted to demonstrate that the leave is FML-qualifying, the department
has the right to request a second opinion on the initial certification. If the
first and second opinion conflict, the department may require a binding third
opinion by a mutually agreed upon health care provider. Under both
circumstances the cost is paid by the department. Second and third opinions are
not permitted on additional certification for recertification purposes.
(02/2017)
5-39. If an absence is
more than thirty (30) days for the employee's own condition, the employee shall
provide a fitness-to-return certificate. The fitness-to-return certificate may
be required for absences of thirty (30) days or less based on the nature of the
condition in relation to the employee's job. The department may also require a
fitness-to-return certificate from employees taking intermittent FML every
thirty (30) days if there are reasonable safety concerns regarding the
employee's ability to perform his or her job duties. (02/2017)
A. When requested, employees shall present a
completed fitness-to-return certificate before they will be allowed to return
to work. Failure to provide a fitness-to-return certificate as instructed could
result in delay of return, a requirement for new medical certification, or
administrative discharge as defined in Rule 5-6. (7/1/13)
B. When an incomplete fitness-to-return
certification is submitted, the employee shall be allowed seven (7) days to
obtain complete information, absent reasonable extenuating circumstances.
Following receipt of the information or the seven (7) days from which it was
requested, the department's human resources director or FMLA coordinator may,
with the employee's written permission, contact the health care provider for
purposes only of clarification and authentication of the fitness-to-return
certification. (02/2017)
5-40. Benefits coverage continues during FML
and state family medical leave. If the employee is on paid FML or state family
medical leave, premiums will be paid through normal payroll deduction. If the
FML or state family medical leave is unpaid, the employee shall pay the
employee share of premiums as prescribed by benefits and payroll procedures.
(11/1/2019)
5-41. Upon return to
work, the employee is restored to the same, or an equivalent, position,
including the same pay, benefits, location, work schedule, and other working
conditions. If the employee is no longer qualified to perform the job (e.g.,
unable to renew an expired license), the employee shall be given an opportunity
to fulfill the requirement. (11/1/2019)
A. If
the employee is no longer able to perform the essential functions of the job
due to a continuing or new serious health condition, the employee does not have
restoration rights under FML or state family medical leave, and the appointing
authority may separate the employee pursuant to Rule 5-6 subject to any
applicable ADA provisions. (11/1/2019)
B. The employee does not have restoration
rights if the employment would not have otherwise continued had the FML or
state family medical leave not been taken, e.g., discharge due to performance,
layoff, or the end of the appointment. (11/1/2019)
5-42. FML and state family medical leave do
not prohibit adverse action that would have otherwise occurred had the leave
not been taken. (11/1/2019)
5-43.
The use of FML or state family medical leave cannot be considered in evaluating
performance. If the performance plan includes an attendance factor, any time
the employee was on FML or state family medical leave cannot be considered.
(11/1/19)
5-44. Records. Federal
law requires that specified records be kept for all employees taking FML. These
records shall be kept for three (3) years. Any medical information shall be
maintained in a separate confidential medical file in accordance with ADA
requirements and Chapter 1, Organization, Responsibilities, Ethics, Payroll
Deduction, and Definitions. (02/2017)
Injury Leave
5-45.
Injury Leave.
A permanent employee who suffers an injury or illness that is compensable under
the Workers' Compensation Act shall be granted injury leave up to ninety (90)
occurrences (whole day increments regardless of the actual hours absent during
a day) with full pay if the temporary compensation is assigned or endorsed to
the employing department. (5/1/10)
A. If
after ninety (90) occurrences of injury leave an employee still is unable to
work, the employee is placed on leave under the "make whole" policy. The
employee will receive temporary disability benefits pursuant to the Colorado
Workers' Compensation Act. The employing department will make up the difference
between the temporary disability benefits and the employee's full pay using
accrued sick leave first, then annual leave or compensatory time as available.
Once all paid leave is exhausted, employees may be given unpaid leave. Workers'
compensation payments after termination of injury leave shall be made to the
employee as required by law. (02/2017)
B. The appointing authority may invoke Rule
5-6 if the employee is unable to return to work after exhausting all accrued
paid leave and applicable job protection. Termination of service under that
rule will not affect continuation of payments under the Workers' Compensation
Act.
C. If the employee's temporary
compensation payment is reduced because the injury or occupational disease was
caused by willful misconduct or violation of rules or regulations, the employee
shall not be entitled to or granted injury leave. Any absence shall be charged
using sick leave first, then annual leave or compensatory time on a "make whole
basis" or, at the appointing authority's discretion, unpaid leave may be
granted and the temporary compensation payments shall be made to the employee.
(02/2017)
D. The first three (3)
regular working days missed as a result of a compensable work injury will be
charged to the employee's sick leave, then annual leave or compensatory time,
as available. Injury leave will only be granted once an eligible employee
misses more than three (3) regular working days. Sick or annual leave for the
first three (3) regular working days will be restored if the employee is off
work for more than two (2) weeks. (02/2017)
E. If a holiday occurs while an employee is
on injury leave, the employee receives the holiday and the day is not counted
as an injury leave occurrence.
Disaster and Public Health Emergency
5-46.
Public health emergency leave, as defined in the
Healthy Families Workplaces Act, shall be granted to a temporary or permanent
employee for the cause of a disaster or public emergency declared by the
Governor or a federal, state, or local public health agency. (01/01/2021)
A. Employees are eligible for up to eighty
(80) hours of paid leave (based on anticipated work schedule hours during the
period of leave for part-time) during the entirety of a public health emergency
even if such public health emergency is amended, extended, restated, or
prolonged. Public health emergency leave may be used for the following reasons:
1. Needing to self-isolate because the
employee is diagnosed or experiencing symptoms of the communicable
illness;
2. Seeking or obtaining
medical diagnosis, care or treatment, preventative care, or care of such
illness;
3. Being exposed to, or
experiencing symptoms of, such illness;
4. Being unable to work due to a health
condition that may increase susceptibility or risk of such illness;
5. Caring for a child or other family member
for reasons 1, 2, or 3 above, or whose school, child care provider, or other
care provider is either unavailable, closed, or providing remote instruction
due to the public health emergency; or
6. Closure of the temporary employee's work
location, and work cannot be performed remotely. (01/01/2021)
B. Permanent employees may receive
administrative leave due to closure of work location caused by the disaster or
public emergency of work location, and work cannot be performed remotely.
(01/01/2021)
C. Public health
emergency leave may be used up to four (4) weeks after the suspension of the
public health emergency. (01/01/2021)
5-47. During the declaration of a state of
emergency by the Governor, as defined in the Colorado Disaster Emergency Act,
in the event that daycares, schools or other care services are closed, impacted
employees shall first work with their supervisor to determine if working from
home or a schedule adjustment will allow them to continue working. If these
measures do not allow for the employee to continue to work, then employees may
use any accrued leave to care for their family members, including but not
limited to domestic partners, in-laws and step relatives. Special consideration
will be given to any other person whose association with the employee is
similar to that of a family member. (08/01/2020)
Notes
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