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What is the Family Care Act and How Does it Work with FMLA?

While civil unions and domestic partnerships are not federally recognized, new Colorado legislation expands the available types of leave for those employees in a civil union or unmarried relationship. In March 2013, Colorado passed the Colorado Civil Union Act, which authorizes any two unmarried adults, regardless of gender, to enter into a civil union. A "civil union" means a relationship established by two eligible persons that entitles them to receive the benefits and protections and be subject to the responsibilities of "spouses." As it relates to employment, these "benefits and protections" generally include worker's compensation survivor benefits, protection from discrimination based on marital status and unemployment benefits. The federal laws do not provide protections or benefits to domestic partnerships or civil unions, and couples who have entered into a civil union in Colorado are not eligible for federal spousal benefits like those arising under the Family Medical Leave Act ("FMLA") or Employment Retirement Income Security Act ("ERISA.")

However, on May 3, 2013, Colorado Governor John Hickenlooper signed into law the new Family Care Act ("FCA") which attempts to broaden the qualifying reasons for Colorado employee leave. The FCA allows eligible Colorado employees to take leave (up to 12 weeks in a 12 month period) to care for any person who has a serious health condition and to whom the employee is related by blood, adoption, legal custody, marriage or civil union, or with whom the employee is involved in a committed (live-in) relationship. While Colorado state law cannot expand federal law, the FCA only applies to employers who are subject to the FMLA (employers with 50 or more employees) and to employees who are eligible for leave under the FMLA (employees who have worked for at least 12 months, 1,250 hours in the past 12 months and worked at a location where the employer has at least 50 employees within a 75 mile radius). A "serious health condition" is defined as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Employers may request reasonable documentation of a family relationship or civil union as long as that requirement is applied in a non-discriminatory manner. For example, if the employer asks for supporting marriage or familial documentation from employees in opposite-sex relationships.

Colorado employers were required to begin complying with the FCA starting on August 7, 2013 (In a previous blog, http://www.bryankuhnlaw.com/blog/2014/08/does-disability-leave-count-against-fmla.shtml, I discussed the implications of other types of leave on an employee's available FMLA leave; noting that an employer may run them concurrently). The FCA states that the leave must run concurrently with federal FMLA leave, and that the FCA does not increase the amount of leave to which an employee is entitled. Yet, the Department of Labor states that nothing in the FMLA supersedes any provision of state or local law that provides greater family or medical leave rights than those provided by FMLA. Similarly, the only way state leave and federal leave run concurrently is if the leave qualifies under both laws. Therefore, FCA leave for civil union relationships cannot run concurrently with FMLA leave because the qualifying reasons do not overlap; as civil unions are not covered under federal law. Similarly, Colorado state law does not allow employer to deny an employee his or her FMLA rights by counting the employee's time off which is not covered by the FMLA, towards FMLA leave usage. As a result, an employee who takes leave under the FCA may also be eligible for an additional twelve (12) weeks leave under the FMLA, if the FMLA does not cover the reason for the FCA leave.

If an employer denies an employee FCA leave to care for a person related by civil union or interferes with an employee's exercise of or attempt to exercise his or her right to FCA leave, the employer is subject to damages and equitable relief as specified in the FCA. An aggrieved employee may bring an action in state court against the employer to recover those damages and/or equitable relief. If you have a question about the FMLA or FCA, please contact us at www.BryanKuhnLaw.com/ to discuss your legal rights.

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