7 Colo. Code Regs. § 1107-7.2

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

Section 7 CCR 1107-7.2 - Definitions and Clarifications

1. Unless otherwise indicated, terms used here that are defined in the FAMLI Act have the same definition as they do under the FAMLI Act. Terms defined under the federal Family Medical Leave Act of 1993 ("FMLA,"29 U.S.C. 2601, et seq. (1993)), or its implementing regulations ( 29 CFR § 825 ) shall be treated as persuasive, supplementary authority when those definitions are not facially inconsistent with the FAMLI Act or its implementing regulations.

2. "Complaint" has the same meaning as 7 CCR 1107-8, Section 8.2.5.

3. "Eligible employee" means an employee entitled to the protections described at C.R.S. § 8-13.3-509(1).

4. "Equivalent position" means a position that is nearly identical to the employee's former position as if the employee did not take paid family and medical leave. This includes pay, benefits and working conditions, privileges, perks, location, and status. It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

5. "Protected activity" means any activity described under C.R.S. § 8-13.3-509(4).

6. "Retaliation" means, and is synonymous with, discrimination based on or for protected activity, and it encompasses any act (whether an affirmative act, an omission, or a statement) that is intended to, and could, deter a reasonable person from engaging in, or impose consequences for, protected activity. Examples of unlawful retaliation may include, but are not limited to:

A. Subjecting an employee to intimidation, threat, reprisal, harassment, or discrimination;

B. Subjecting an employee to an adverse employment action, including discipline, discharge, suspension, transfer, or assignment to a lesser position in terms of job classification, job security, or another term or condition of employment;

C. Reducing the pay or hours of work of an employee or denying an employee additional hours of work;

D. Failing to hire an individual because they engaged in protected activity;

E. Failing to reinstate an employee following a return from leave, in accordance with Section 7.3 of these rules;

F. Failing to store and maintain the confidentiality of employee information related to requests for leave under the FAMLI Act or its implementing regulations, in accordance with all applicable federal, state, and local laws and regulations, and as provided by 7 CCR 1107-3, Section 3.8.9 and 7 CCR 1107-5, Section 5.3.8.

G. Initiating an eviction proceeding or evicting an employee from employer-provided housing because they engaged in protected activity.

H. Engaging in conduct that would reasonably have the effect of discouraging a reasonable employee from accessing family and medical leave insurance benefits;

I. Enacting or enforcing an employer attendance policy that counts leave taken under the FAMLI Act as an absence that may lead to or result in discipline, demotion, or suspension. Such an attendance policy shall constitute per se retaliation under C.R.S. § 8-13.3-509. An employee working under this policy is entitled to appropriate legal and equitable relief under the FAMLI Act.

J. Taking any effort to use a person's immigration status to negatively impact the rights, responsibilities, or proceedings of any person or entity under the FAMLI Act. Such efforts shall constitute per se retaliation and/or extortion, based on statutory provisions including but not limited to the following that make it unlawful: for any person to "threaten[] to report to law enforcement officials the immigration status of the threatened person or another person" to "induce another person" to give up money "or another item of value" (C.R.S. § 18-3-207 (1.5)), including inducing the surrender of any "tangible and intangible personal property, contract rights, choices in action, [or] services, and any rights of use or enjoyment connected therewith" (C.R.S. § 18-1-901).

7. "Interference" means any act or omission that, regardless of intent, interferes with any right or protected activity under the FAMLI Act or its implementing regulations. Interference includes but is not limited to:

A. Intimidating or threatening conduct intended to discourage an employee from accessing family and medical leave insurance benefits or family and medical leave, or which has the effect of discouraging an employee from accessing such benefits or leave;

B. Providing false or misleading information intended to interfere with an employee's ability to access family and medical leave insurance benefits or paid family and medical leave, or which has the effect of interfering with an employee's ability to access such benefits or leave;

C. Failing to provide notice, as required by C.R.S. § 8-13.3-511;

D. Failing to reinstate an eligible employee to their position upon returning from leave as required under C.R.S. § 8-13.3-509(1) and Section 7.3;

E. Information requests prohibited by 7 CCR 1107-3, Section 3.8.9 or 7 CCR 1107-5, Section 5.3.8;

F. Requiring the production of information defined as confidential under these rules or other statutes including but not limited to the Healthy Family and Workplaces Act of 2020 ("HFWA," C.R.S. Title 8, Article 13.3, Part 4), the Family and Medical Leave Act of 1993 ("FMLA,"29 U.S.C. §§ 2601 - 2654 (2006)), the Americans With Disabilities Act of 1990 ("ADA,"42 U.S.C. § 12101 et seq. (1990)), and the Genetic Information Nondiscrimination Act of 2008 ("GINA,"42 U.S.C. § 2000ff et seq.);

G. Failing to cooperate with the Division in processing a request for family and medical leave insurance benefits;

H. Failing to cooperate with the Division's compliance activities that implicate an individual's rights under the FAMLI Act and its implementing regulations;

I. Inducing or attempting to induce an individual to prospectively waive a right under the FAMLI Act or its implementing regulations;

J. Taking any effort to use a person's immigration status to negatively impact the rights, responsibilities, or proceedings of any person or entity under the FAMLI Act; or

K. Requiring an individual to perform work during a period of paid family and medical leave.

8. Except where expressly provided by the Act and its implementing regulations, these rules do not apply to local governments that have declined participation in the FAMLI program.

7 CCR 1107-7.2

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