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Employer FAQs

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General Program Questions

Am I responsible for paying my employees wages while they are on leave?

No. The program is a social insurance, and the State pays your employee (the claimant) a portion of their weekly wages directly through a debit card or direct deposit.

As the employer, you are not responsible for the salary or wages while someone is on leave. However, any portion of the employee's health insurance benefits you normally cover; you are required to continue. You may choose to require the employee to continue to pay their share of their contribution to these benefits while they are on leave.

Local government employers which opt-out of the FAMLI program are not required to maintain health insurance benefits during FAMLI leave for their employees who opt-in to the program. See C.R.S. 8-13.3-509(8). However, while the FAMLI Act does not require a local government employer to maintain benefits in this situation, the terms of your specific benefits policies and/or other laws or regulations may require benefits to be maintained during paid family and medical leave.

What do I do when my employee is on leave?

While an employee is on leave, employers are not responsible for paying wages at that time. Because of this, you may have access to vacancy savings to spend as needed. Optionally, as an employer you may, but are not required to, contract with a temporary worker to supplement your staffing needs.

Your employee will only be receiving a portion of their paycheck dependent on their average weekly wage and not the full amount. The benefit is capped at $1,100.00 a week. Employees are not required to use earned paid time off (PTO) before taking leave under the FAMLI program, but employers may allow employees to use their accrued PTO to “top off” or cover the remaining balance of their typical weekly wage in order to “make whole” their take-home pay while on leave.

What do employers do with temporary workers if they cannot afford to keep them on in addition to the permanent employee once that employee returns from leave?

This decision lies with the employer. As best practice, being honest with the temporary worker that their position may be limited to cover temporary leave for another employee will be helpful.

However, depending on the permanent employee’s circumstances and reason for taking leave, it is possible another federal law such as the American with Disabilities Act (ADA) would be relevant to the employee's new life circumstances, and a partial return to work/job sharing model may exist for a time. If time was spent onboarding the temporary worker, having them available during a transition or for another event may be helpful and can save time and effort

I employ highly skilled workers, and a temporary worker would not be a solution for my business. What should I do while an employee is out?

Even a single employee vacancy can be a strain for a businesses’ daily operations. Businesses may have other employees share the workload from the employee taking leave. While an employee is on leave, employers have access to vacancy savings. Employers may use vacancy savings from an employee on leave to provide a bonus or hazard pay for other employees who take on additional work.

How long and how often can employees take FAMLI leave?

FAMLI leave is different from paid sick days and will require documentation of need in most cases before the benefit is approved by the FAMLI Division. Depending on the reason and need for leave, the benefit leave period may be up to 12 weeks. For people experiencing pregnancy and childbirth complications this may be extended an additional 4 weeks, for a total of 16 weeks.

The FAMLI benefit can only be taken once a year across a rolling annual calendar year. For example, if an employee takes paternity leave on February 11th, 2024 for the full 12 weeks, they would not be eligible for any other FAMLI leave period covered until February 11th, 2025.

Which employees are eligible for FAMLI leave?

Most Colorado employees become eligible to take paid leave after they have earned at least $2,500 in wages within the State within the last 4 calendar quarters.

Self Employed Workers (1099 or Contract Workers) may also be eligible if they have opted into coverage and live and work in Colorado.

How will I know how long an employee is eligible to be out on FAMLI covered leave?

This depends on several factors and will need to be decided on a case by case basis.

However the Colorado FAMLI leave benefit is never more than 12 weeks, or 16 weeks for complicated births. The Division will issue rules as well as guidance to help you navigate these conversations and determinations prior to January 2024, which is the first month a person may take FAMLI leave.

How will I know when my employee is expected to return to work?

The Division is building a technological solution that will notify an employer when an employee files a claim, information regarding the adjudication of the claim, the duration of the claim, and leave type of the claim. This will facilitate coordination of other benefits available to the employee and an appeals process for employers. Claimants must still follow their employer's absence reporting policies. The Division anticipates launching this online portal at the end of 2023 before benefits become available in January 2024. 

I work for a religious organization, or a non profit organization that is exempt from paying FUTA taxes under IRS section 501(c )(3), does that mean my organization is exempt from FAMLI?

Great question! The answer is no. Religious organizations, nonprofits or any other employer who may be exempt from FUTA premiums are NOT exempt from paying FAMLI premiums.

Are pastors and other religious leaders considered employees under FAMLI, or are they considered self-employed workers?

If the pastor or religious leader meets the definition of employee, they would not be considered a self-employed worker and should be counted as an employee and contribute premiums the same way all other employees in the organization do. Under the FAMLI Act, an “employee” is any individual, including a migratory laborer, performing labor or services for the benefit of another, irrespective of whether the common law relationship of master and servant exists. The FAMLI Act’s definition of “employee” includes a two-prong exception:

If a person is both primarily free from control in the performance of their work, and that work is part of their independent profession or trade, then that person is not an employee under the FAMLI Act, and payments to them would not be subject to premiums. §8-13.3-503 (7) C.R.S.

It's important to note that the Division may investigate claims that an employer has misclassified one or more employees as independent contractors.

I'm a partial owner in an S-Corp, and we have no other employees. Our S-corp business structure means that I pay no corporate taxes but instead pay my shareholders, who are responsible for the taxes due. Do I need to participate?

The structure of a business isn’t what matters for FAMLI compliance. What matters is whether the business has qualifying employees. If you have at least one qualifying employee, you will need to register with the Division, submit wage data and send in premiums on behalf of that employee. Under the FAMLI Act, an “employee” is any individual, including a migratory laborer, performing labor or services for the benefit of another, irrespective of whether the common law relationship of master and servant exists. The FAMLI Act’s definition of “employee” includes a two-prong exception:

If a person is both primarily free from control in the performance of their work, and that work is part of their independent profession or trade, then that person is not an employee under the FAMLI Act, and payments to them would not be subject to premiums. §8-13.3-503 (7) C.R.S.

Should employers from different industries like Agriculture/Livestock etc. consider paying on behalf of their employees?

Employers with even just one employee will have to fulfill their FAMLI obligations regardless of what industry they are in.

While employers with fewer than 10 employees are not required to pay the employer share of the contribution, they are still required to send in the employees’ share of the contribution and wage data to the Division every quarter. Whether or not small employers cover the employee share of the premium on behalf of its employees will be entirely up to the employer and its individualized business needs.

Your employees will still be covered by FAMLI and will have access to benefits once they become available in 2024.

 

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Coordination of Benefits

What about the federal FMLA? Can an employee take double leave?

The FAMLI program was designed to be able to run concurrently with the FMLA. For more information, see U.S. Department of Labor Office of Wage and Hour Opinion Letter FMLA-2019-1-A.

Will FAMLI benefits run concurrently with short or long term disability benefits?

Employers who offer short-term long-term disability benefits may decide to require FAMLI benefits run concurrently with those short-term and long-term disability plans so long as the employer provides written notice to employees of the requirement.

Do I have to maintain health insurance for my employee while they're on leave?

Yes. Both the FMLA and FAMLI require employers to keep providing health insurance while an employee is on leave. During the leave, employees need to keep paying their part of the insurance cost. There are different ways employees can make these payments, including paying directly to the employer through a payment plan. You can find details in 7 CCR 1107-4, Section 4.6.2.

If an employee and the employer agree on a payment plan but the employee doesn't make the payments during FAMLI leave, the employer can stop the health care coverage if they follow the FMLA regulations at 29 CFR 825.212, including giving notice and following specific timing. The employer must, however, bring back the coverage when the employee returns. FAMLI also stops employers from interfering with employees' rights. So, the employer can't cancel coverage if it means they can't fully restore the employee's benefits when they come back. This would go against the employee's right to coverage restoration under FAMLI.

How do employers administer FAMLI with existing leave/PTO policies?

Employers cannot require employees to use accrued vacation, sick leave, or other paid time off before or while receiving FAMLI. However, employers and employees can agree that an employee taking FAMLI leave can use accrued paid time off to “top off” their pay to make their benefit payments “whole.” Employees cannot, however, receive more in compensation than their average weekly wage.

 

 

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Wages, Deductions & Premiums

Are FAMLI premiums pre-tax or post-tax?

FAMLI premiums should be considered post-tax deductions that do not reduce an employee’s taxable income.

How do employers report FAMLI deductions on IRS form W-2?

Employers should report such deductions on IRS form W-2 in Box 14, and list “FAMLI” as the label. The FAMLI Division does not regulate income tax reporting requirements, and we encourage employers to confer with counsel, their accountant, and/or the IRS to ensure compliance.

Do we need to deduct premiums from international J1s (and are they eligible to use the benefit) if they are only here for four or 12 months?

Employers are required to make the FAMLI premium deductions (and pay the premiums to the Division) for every employee regardless of how long the employee works for them. This obligation starts the day the employee is hired.

Any individual who is legally allowed to work in the USA and has earned $2500 in wages that are subject to FAMLI premiums within the state of Colorado over the course of roughly a year, is eligible to apply for FAMLI benefits once they become available in 2024.

How will FAMLI deductions apply if an employee is working more than one job at a time?

This depends on the type of jobs the individual is doing simultaneously. If both jobs are with employers participating in FAMLI (not an opted out local government, not a private employer using an approved private plan, and not an employer choosing to cover the employee’s share of the premium), then this individual would see the FAMLI deduction on each paycheck from each employer. When benefits become available in 2024, this individual would have to identify which employers they are requesting to take leave from.

Do we need to register if we have a third party payroll provider?

If your Third Party Administrators (TPA) has indicated that they will register on your behalf and manage your wage reporting and premium payments for your business, you do not need to register. Please confirm with your TPA exactly how they will be supporting your business in meeting your obligations.

If you want access to your My FAMLI+ Employer account after your TPA has registered on your behalf, your TPA will need to add you as a user. You can create your own user account in My FAMLI+ Employer, and request access to your business account if your business has already been registered.

Employers and TPAs now have the option of managing TPA-relationships and connecting their accounts directly in My FAMLI+ Employer. Visit our My FAMLI+ Employer page for user guides and how-to videos or give us a call at 1-866-CO-FAMLI (1-866-263-2654) for support.

What happens to the employee’s contributions when they retire and/or leave the State of Colorado?

The FAMLI program is a social insurance program that both employers and employees contribute to. All contributions are added to the fund that will eventually pay out benefits starting in 2024. The law currently does not allow an individual to withdraw contributions upon retirement or when leaving the state. The contributions made by that individual will remain in the social insurance pool after they retire or stop working in Colorado.

What if the employer did not start deducting the employees’ share of the premium on January 1, 2023, can everything be deducted now?

No. Premiums cannot be deducted retroactively. If an employer does not deduct premiums from wages during the current pay period, then the employer must cover the employees’ share of those premiums on their behalf.

 

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Payments

How much do employers have to pay?

Overall, FAMLI is a shared fee between employers and employees based on 0.9% of wages. This rate is set through 2025 by Proposition 118, voted in by 57% of Coloradans as the authorizing vote of the people to create the FAMLI enterprise fund.

Employers are responsible for “remitting” on behalf of their employees or paying into the fund on their employees’ behalf. This can be achieved through a wage deduction as a part of existing payroll processes. An employer will not be required to pay more than 0.45% (or half the premium)* into the program from its own business expenses. 

If you have less than 10 employees (nationwide), you are not required to pay the employer share.

If you have 10 or more employees (nationwide), you may deduct up to 50% of the 0.9% premium as a standard payroll deduction. 

Because the rate has already been set, this formula is used to calculate premiums:

  • (subject annual wages X .009) / 2 = employer share
     
  • (subject annual wages X .009) / 2 = employee share

The upper limit of what an employer may be required to pay for a senior level or executive employee is capped at the same rate their social security withholding is. The Federal Social Security Wage Cap is set at $168,600 for earnings in 2024.

The chart below is a floor to ceiling calculation of what a self employed individual or an employer can expect to pay as a premium. See the table below. 

 FAMLI Floor to Ceiling Calculation in 2024 dollars 

Estimates only. Annual cost to employer/employee at 50/50 in BOLD.

Minimum Wage in Colorado= $14.42
Federal taxable wage base 
 

Annual minimum wage* = $ 29,994
 
2024 rate = $ 168,600

(29,994 x .009)=  $269.95 per year/2
 
(168,600 x .009) = 1,517.40 per year/2

134.97/52 weeks = $2.59 per week per employer
 
758.70/52 weeks = $14.59 per week per employer

$2.59 per week per employee 
 
$14.59 per week per employee


This table shows the new 2024 minimum wages as a floor and the new 2024 Social Security Wage Cap as a ceiling. 

 

How and when am I required to pay premiums?

Both employers and employees will begin paying into the fund starting in January 2023 through payroll deductions. Employers need to submit to the Colorado Department of Labor and Employment both their share (if required) and their employee's share of the premium through an online system at the end of each quarter. These quarterly filings should be similar to how most companies submit their unemployment insurance today. 

These contributions build the FAMLI fund during 2023. Starting on January 1, 2024 employees may begin to file claims to receive their FAMLI benefits through an online process in development by the Department. The 2023 premium payment schedule is:

  • April 30, 2023 - A 30-day grace period will be offered before the first premium payments and wage reports are considered late. 
  • July 31, 2023
  • October 31, 2023
  • January 31, 2024

Responsibilities Under Proposition 118


Employer Type
 

Employer Premium
 

Employee Premium
 

No Premium
 
9 or fewer employees
 


 
 
10 or more employees

 


 
 
Participating Self-Employed 

 
 
Participating Local Government Employee 

 
 
Nonparticipating local government  
Nonparticipating Self-Employed  
Employer with Private Plan  

 

 

Do I pay premiums through the FAMLI website or through the mail?

Employers will have several payment type options to submit their quarterly premium payments to the FAMLI Division:

  • Online Payments through the My FAMLI+ Employer portal
  • Online Bill Pay
  • Payment via API
  • ACH Credit
  • Payment by Check

Please visit the Employers page and click on “Paying Your Premiums” for more details.

Will there be timely reporting and payment reminders?

My FAMLI+ Employer will soon be sending automated reminders when wage reports and premiums are due. In the meantime, please subscribe to our newsletter to receive important deadline reminders.
The premium payments and wage reports will be due on the last day of the month following the end of the quarter. The 2023 schedule is:

  • April 30, 2023 - A 30-day grace period will be offered before the first premium payments and wage reports are considered late and is reflected as May 31, 2023 in My FAMLI+ Employer.
  • July 31, 2023
  • October 31, 2023
  • January 31, 2024

If an employer fails to submit wage reports and premium payments, the employer may face a fine of up to $50.00 per employee whose wages are not reported.

 

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Private Plans

Can an employer participate in FAMLI now and apply for Private Plan Approval later?

Yes, an employer may apply for private plan approval at any time after previously participating in FAMLI. If an employer plans to apply for Private Plan approval, they must continue to fulfill their FAMLI obligations until their private plan is formally approved by the Division. Employers will be able to request a refund for premiums paid in 2023, if their private plan has an effective date on or before January 1, 2024, and they submit an application for private plan approval on or before October 31, 2023.

Will the Private Plan marketplace be changed frequently or will there be a defined time for the approved private plans?

The FAMLI Division is working closely with the Division of Insurance (DOI) to ensure private plan insurance carriers have products available to employers that meet all of the FAMLI requirements. Once an insurance carrier’s plan gets approved by the State, the plan will be added to My FAMLI+ Employer. A list of plans pending approval is published here to indicate what policies will soon be available to employers in the marketplace.

What if an employer wants to change its Private Plan for another alternative private plan?

Employers who make a material change to their private plan are required to notify the Division of the change 60 days before it takes effect and must include a statement describing how the change will not reduce benefits or impose new requirements beyond those in the state FAMLI plan. The Division will review the change and determine if the change impacts the plan’s approval.

Are employers who receive a refund for 2023 premiums after securing an approved private plan required to use those funds to refund employees for 2023 deductions?

Employers must use the funds to refund employees who contributed premiums in 2023, unless their approved private plan authorizes 2023 collection of premium contributions from employees.

How do I find an authorized surety company to secure a surety bond for my self-insured private plan?
  1. Go to: https://doi.colorado.gov/
  2. Hover mouse over “For Consumers” in the bar at the top of the page.
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  1. Hover over “Consumer Protection in the dropdown menu.
  2. Click on “Verify a License” - This will send you to a new webpage.
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  1. Select "Colorado" for the state, then "Company," then select "Fidelity/Surety" under Authorized Line Type then click Submit to access a list of all insurers authorized to sell surety bonds in Colorado.
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When does the “Application Year” or “Benefit Year” start?

An employee’s “Application Year” is twelve months, measured forward from the employee’s first day away from work on FAMLI leave. For example, if the employee takes two weeks of FAMLI leave starting on February 3, 2024, the application year runs from February 3, 2024 through February 2, 2025.  During that time, this employee is limited to using 12 weeks of leave (or 16 weeks if the employee qualify for the extra 4 weeks for a pregnancy or childbirth complication).  

The employee’s next application year will start on February 3, 2025 or the next date the same employee takes FAMLI leave, whichever is later. For example, the first application year ends on February 2, 2025, and the employee doesn’t need to take leave again until needing to bond with a new baby on September 1, 2025. The new benefit year runs from September 1, 2025 through August 31, 2026. 

 

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Counting Employees

How do I count nationwide employees?

Your total nationwide employee count will be what determines whether or not you pay the employer share of the premium. You will only need to pay premiums for the employees who are localized in Colorado. For example, if you have 15 employees nationwide, and eight working completely in Colorado, you as the employer would be required to pay the 0.45% employer's share and collect and remit the 0.45% of the employee's share for each of those eight employees.

If an employee lives in Colorado but works in another state, is the employee subject to FAMLI? If an employee works in Colorado but lives in another state, is the employee subject to the FAMLI?

Under the FAMLI Act, most private sector employers must provide paid family and medical leave to their Colorado employees, whether through the state-run plan or through a private plan with equal or greater benefits and protections. An employee's wages will be subject to FAMLI premiums if:

  1. The employee's work is performed entirely within Colorado;
  2. The employee performs work both within and outside of Colorado, but the work performed outside of Colorado is incidental to the employee's work within Colorado, or is temporary or transitory and consists of isolated transactions; or
  3. The employee's work is not primarily localized in any state, but some work is performed in Colorado, and one of the following is true:
    • The employee's base of operations is in Colorado, or if there is no base of operations, the place from which the employee's work is directed or controlled is in Colorado; or
    • Neither the base of operations nor the place from which some part of the work is directed or controlled is not in any state in which part of the employee's work is performed, but the employee's individual residence is in Colorado. More information regarding localization can be found in the FAMLI Division's Premium Rules at 7 CCR 1107-1, Section 1.5.4.B.

We've created the following decision tree to help employers determine Colorado localization when it comes to employees being subject to FAMLI:

Infographic showing the process for determining FAMLI coverage for employers with nationwide employees

When determining whether the employee works primarily in Colorado or some other state, it is not sufficient to determine the amount of time they work in a state. An employee works primarily in a state only if the work performed outside that state is incidental to the work performed inside the state, or if the work performed outside the state is temporary or transitory and consists of isolated transactions. It is possible that an employee does not work primarily in any state.