Q1 ’23: Fantastic Voyage

Colorado Paid Family and Medical Leave Insurance (FAMLI)

Colorado has finally begun providing employers a little more insight on how the FAMLI program will be administered. With contributions live on January 1, 2023, we are all eager to learn a little more about the program.

Application for FAMLI Benefits

Employees will apply for benefits directly with the FAMLI Division unless an employer has been approved to use a private plan. Such applications may be submitted at least 30 days before an anticipated start date for benefits, although applications will be considered if submitted at least 30 days after leave has begun if earlier notice was impracticable under the circumstances.

Once an application for benefits is received, the state will notify the claimant’s employer of the application within five business days of the submission.

Employees must provide different forms of information depending on the nature of leave. An application to take leave for an employee’s own serious health condition will require a “Serious Health Condition Certification – Self Form,” while a separate “Serious Health Condition Certification – Family Member Form” will be required if the leave is in connection with a family member’s serious health condition. There will also be separate forms if the leave need is for qualifying exigency or safe.

Employees should also notify their employer of their need for leave in the same manner as they would typically communicate work unavailability and should follow the employer’s usual and customary notice requirements.

Adjudication of Claims

Once an application for FAMLI benefits is fully submitted by an employee, the Division will adjudicate the claim for benefits within two weeks. The Division will also notify the employee and employer of the benefit outcome.

If benefits are approved, the notice will include the leave start date, leave duration, any denied segments of requested leave, and a description of any approved reduced leave schedule or intermittent leave where applicable. Additionally, upon employer request, the Division will share certain information regarding the benefit amount and reason for leave to assist employers in coordinating other employer-provided benefits, such as PTO, sick leave, or other paid leave. In the absence of the benefit amount detail, the state has built a calculator to assist employers and employees in not only determining employer and employee cost, but also benefit amounts.

FAMLI Employer Registration Now Open!

My Famli+ Employer is the online employer services portal which Colorado businesses, third-party administrators (TPAs), and local government employers will use to manage their FAMLI accounts. My FAMLI+ Employer will operate similarly to My UI Employer, allowing employers to report wage data, remit premium payments, apply for exemption with a private plan and upload letters of declination votes. Most Colorado businesses will need to register in My FAMLI+ Employer before the first premium payments are due April 30, 2023.

Registration Checklist:

• The contact information for the primary administrator of the account and a second authentication method. The person completing the registration process for the My FAMLI+ Employer account will be the primary account administrator and will need to set up multifactor authentication to login.
• Business’s legal name.
• Business’s federal employer identification number (FEIN).
• Business’s primary location address and the mailing address (if different from the primary location).
• Total employee headcount. This will determine premium liability. More information on how to determine total employee headcount can be found on the Employers page under “Determining Your Employee Headcount.”
• The name and email address for any additional users that need access to the My FAMLI+ Employer account. Additional users can also be added after registration.

Private Plans

Colorado did not accept private plan applications in 2022. All employers must remit employee and employer (if you have 10 or more employees) contributions to the State beginning 1/1/23. Employers must submit their 1/1/24 private plan by 10/31/23. Colorado will refund employers for contributions paid to the State Plan for approved private plans effective 1/1/24.

There is a $500 fee per FEIN for 2024 effective dates and the application must be submitted at least 60 days prior to the requested effective date. Approval is good for eight years. However, every November, employers must attest their private plan meets requirements. Annually, beginning Q1 2025, Colorado will charge employers a maintenance fee to cover Colorado’s expenses associated with the prior year’s administration.

Self-insured private plans must have a Surety Bond in an amount equal to one year of total premiums under the State Plan.

Paid Leave Oregon

Rules Summary

The Oregon Employment Department created a document that combines Paid Leave Oregon statutes and rules in one easy to read format. Aren’t they the most resourcefulest? A link to the compilation can be found here.

Change to Employee Count

Paid Leave Oregon changed the way employees are counted, based upon partner and community feedback, as it has been a consistent area of confusion. This change aligns Paid Leave more closely with the way employees are counted for the Unemployment Insurance program. The rules are available under definitions and methods, and there is a guide and chart to help employers determine their employee count.

Here is a summary of what’s changing:

• Previously, employer size was counted as the average number of employees over the previous four quarters using payroll reports.
• Now, employers count their size using the average number of employees on the 12th of each month from the previous 12 months. This means there are 12 numbers to calculate the average instead of four.

What’s not changing – 25 employees as the threshold between small and large employers.

• Employers with 25 and more employees are considered large, and those with fewer than 25 are considered small.
• Employers with 25 or more employees will still pay the employer contribution rate.
• Employers with fewer than 25 employees will not pay the employer contribution, but can choose to do so.

According to the State, this new way of counting employees will give employers a more accurate reflection of the true number of employees. This is especially important for small employers with high turnover.

This change was effective when contributions began on January 1, 2023.

Employer Notice Required 1/1/23

Paid Leave Oregon’s posting requirements were effective 1/1/23. Beginning 1/1/23, employers must post notice of the program in every establishment where employees are employed. Employers must post the notice in the languages it typically uses to communicate with employees. Additionally, employers must provide a copy of the poster to remote workers via hand delivery, regular mail, or email. The notice must also be provided to remote workers upon hire or upon assignment to remote work. The state’s model notice poster can be found here.

Communication to Employers on Employee Application for Benefits

If you are going with the State plan, notices from the State will contain approval status and leave start and end dates. That’s about all we can expect. Notices will not contain detail such as leave reason or payment amounts and will not provide definition on the parameters of intermittent leave. The state concedes employers need this detailed information to correctly apply OFLA/FMLA and to coordinate pay programs; however, they are taking the position that employers will need to rely on employees to provide the information needed to run the leave entitlements and pay programs that are under employer purview. Unfortunately for your employees, this could mean, in certain situations, a dual or even triplicate medical certification process if an employee is to receive protections under FMLA/OFLA, Paid Leave Oregon, and potentially STD as well. This news comes as a disappointment, but not a shock. For those of you operating in Washington, your experience has been similar under WAPFML. However, we are appreciative that we have this decision from OED with enough time for employers to plan and make informed decisions on how to best integrate pay programs.

So my question is, how many cocktails does it take to recover from reading that paragraph? Is it five? I feel like it’s five.

Public Health Emergency Declaration – Revised OFLA Eligibility

Governor Brown declared a public health emergency on November 14, 2022, in response to an increase in pediatric cases of respiratory syncytial virus (RSV). The declaration extends to March 6, 2023, unless extended or terminated earlier by the governor.

What does this mean for you? As we wrote in Q4 2021 and Q1 2022, OFLA eligibility is revised during periods of a PHE. As a result, employees may become eligible for OFLA with just 30 days of employment (rather than 180) if they have worked an average of 25 hours a week in the 30 days before taking a leave. Additionally, OFLA eligible employees who terminate or are removed from the schedule but return to service within 180 days remain eligible for OFLA leave on their return. Also, credit for days of employment prior to a break in service must be restored to the employee when the employee is reemployed/returned to service by the former employer within 180 days.

Oregon’s prior Public Health Emergency was effective January 1 through March 31, 2022. Once the declaration is lifted, employers revert to the standard OFLA eligibility rules.