7 Colo. Code Regs. § 1107-7.3

Current through Register Vol. 47, No. 24, December 25, 2024

Section 7 CCR 1107-7.3 - Clarifications Regarding Job Reinstatement

1. Pursuant to C.R.S. § 8-13.3-509(1), Any covered individual who has been employed with the covered individual's current employer for at least 180 days prior to the commencement of the covered individual's family and medical leave who exercises the covered individual's right to family and medical leave insurance benefits shall be entitled, upon return from that leave, to be restored by the employer to the position held by the covered individual when the leave commenced, or to be restored to an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment.

A. An individual is considered employed on any day they work, on their days off, and during any leave, paid or unpaid, where the employer reasonably believes the individual will return to work. Where employment is seasonal, an individual is not considered employed between seasons.

B. The 180 days need not be consecutive. However, if a gap in employment exceeds 365 days, then the number of days employed resets to zero.

C. A change in the employee's status with their current employer does not reset or negate the number of days the employee was employed prior to the change in status (e.g., full-time to part-time, seasonal to full-time).

D. Leave taken under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA,"38 U.S.C. §§ 4301 - 4334 (1994)) is considered "employment."

E. The replacement of an employer by a "successor employer," as defined by C.R.S. § 8-13.3-503(8)(b)(II), does not interrupt an employee's accumulation of days employed.

2. An employer is not obligated to reinstate an employee:

A. Where the covered individual has not been employed with the current employer for at least 180 days prior to the commencement of the covered individual's family and medical leave;

B. Where the covered individual's family and medical leave extends beyond the maximum benefit duration provided by C.R.S. § 8-13.3-505;

C. Where the employee's return from family and medical leave coincides with an employer's scheduled cessation of operations for the season (e.g., ski resorts, waterparks) and the employer can show that the employee would not otherwise have been employed at the time of reinstatement;

D. Where the employee's written contract for employment with the employer has ended pursuant to its terms;

E. Where an employee's position is eliminated due to legitimate downsizing or reorganization;

F. Where the employee cannot perform the essential functions of their job any longer following the period of leave. An employee may be eligible to request reasonable accommodation under the Americans with Disabilities Act ("ADA"), C.R.S. § 24-34-402.3, or other applicable state or federal law;

G. Where the Division or a private plan administrator has made a determination that the employee applied for or was approved for family and medical leave insurance benefits based on a fraudulent certification;

H. Where the employee fails to provide notice pursuant to C.R.S. § 8-13.3-505(5) and CCR 7 CCR 1107-3, Section 3.8, unless the need for leave was not foreseeable and unusual circumstances justify the failure to comply; or

I. Where an employee on family and medical leave provides written notice of resignation.

3. An employer that chooses to deny reinstatement under this subsection to an employee on family and medical leave must notify the employee in writing as soon as the employer decides to deny reinstatement. The employer must serve this notice to the employee either in person or by certified mail. The notice must include:

A. A statement that the employer intends to deny employment reinstatement when the leave has ended;

B. The reasons behind the decision to deny reinstatement and the grounds for denying reinstatement as provided by subsection (2) of this rule;

C. An explanation that health benefits will still be paid for the duration of the leave; and

D. The date on which eligibility for employer-provided health benefits ends.

4. Under this Rule, an "equivalent position" as defined in Section 7.2 of these rules includes, but is not limited to:

A. Base pay - Providing an employee with equivalent base pay upon returning from family and medical leave. Base pay includes bonuses as described by 29 CFR Section 825.215(c)(2). Base pay does not include overtime or tips unless such overtime was regular or consistent. If an employee departed from a position averaging ten hours of overtime (and corresponding overtime pay) each week, an employee is ordinarily entitled to such a position on return from family and medical leave.

B. Benefits - Providing an employee with equivalent benefits upon returning from family and medical leave. Benefits include all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions, regardless of whether such benefits are provided by a practice or written policy of an employer through an employee benefit plan.

C. Proximate location - Permitting an employee to return to an equivalent location as worked prior to taking family and medical leave. If it is not possible to return the employee to the exact location, an employer may offer to return the employee to a proximate location or site where work is performed for and/or in connection with the employer's business. If the employer offers a position at a location different from the employee's original worksite, the employee must be reinstated to a geographically proximate worksite (i.e., one that does not involve a significant increase in commuting time or distance).

D. Approximate shift times - Providing an employee with a schedule that is equivalent to the employee's schedule prior to taking family and medical leave. Material changes to an employee's schedule upon return from leave may raise an adverse inference of retaliation (e.g., scheduling a historically day shift working employee to graveyard shifts, etc.). In returning a covered employee to their equivalent position, employers may be required to remove an employee temporarily working the covered employee's shift in order to comply with this section.

E. Approximate hours per week - An employee returning to work from family and medical leave shall be permitted to work the equivalent number of hours per week as was worked prior to the employee taking leave. Material changes to an employee's working hours that change the employment status of an employee may raise an adverse inference of retaliation (e.g., reducing an employee's hours from 40 hours per week to 25 hours per week, changing the employee's status from full-time to part-time).

5. Nothing in these Rules shall be construed to require an employer to extend or offer permanent or indefinite employment to a temporary or seasonal employee.

6. Employers shall not be prohibited from disciplining or terminating employees who have attendance issues unrelated to protected leave under the FAMLI Act (e.g., excessive tardiness), or employees who have violated company policies that comply with applicable local, state, and federal laws.

7. Nothing in these Rules requires an employer to ignore an employee's performance or retain an under performing employee.

8. No employer shall be required to postpone or avoid legitimate layoffs or downsizing of a business solely to restore an eligible employee to their prior position upon returning from approved leave under the FAMLI Act.

9. An employee who is approved for and takes leave on an intermittent or reduced leave schedule and who fails to work during hours scheduled in accordance with that leave may be subject to employer discipline. In the event that an employee's utilization of intermittent leave or reduced leave schedule is inconsistent with the Division's or private plan administrator's approval, it shall not be considered retaliation under C.R.S. § 8-13.3-509(3) for an employer to request additional information related to the use of leave.

10. An employee's reinstatement to a position slated for elimination due to legitimate downsizing or reorganization would not meet the requirements of an equivalent position when the employee's original position is not slated for elimination due to downsizing or reorganization.

11. An employee is entitled to reinstatement even if the employee has been replaced or the employee's position has been restructured to accommodate the employee's absence unless the employer can demonstrate the circumstances fall within Sections 7.3.2 or 7.3.3.

12. Leave and employment protection provided by C.R.S. § 8-13.3-509(1) is limited to the benefit duration provided by C.R.S. § 8-13.3-505. An employer may not treat an absence that is subject to appeal or judicial review as an absence not protected by the FAMLI Act unless and until the leave is denied and the claimant exhausts any right to appeal or judicial review. However, if the outcome of an appeal or judicial review is pending outside of the benefits duration provided by C.R.S. § 8-13.3-505, it does not extend the duration of the leave available to the employee beyond the period approved by the Division or a private plan administrator.

7 CCR 1107-7.3

46 CR 12, June 25, 2023, effective 7/15/2023

46 CR 23, December 10, 2023, effective 1/1/2024

47 CR 23, December 10, 2024, effective 1/1/2025