Colorado recently enacted legislation that would provide partners in a legal civil union or domestic partnership the same benefits provided to family members under the federal Family and Medical Leave Act ("FMLA"). The new Colorado Family Care Act ("FCA") was signed by Governor John Hickenlooper one month following the passage of a new Colorado law legitimizing civil unions. Barring a referendum petition filed against the FCA, or parts of the FCA, the law will take effect on August 7, 2013. However, if a referendum petition is filed against any part of the FCA, the legislation will only become law upon voter passage of the Act in the general election in November 2014.

The FCA allows eligible employees to take up to 12 weeks of unpaid leave to care for partners in a civil union or domestic partnership who are seriously ill. Eligible employees include those in a civil union recognized under the Colorado Civil Unions Act and employees in a domestic partnership that is either registered in the municipality in which the employee resides or is an employer-recognized domestic partnership. Employers may request reasonable documentation of such a legal partnership or civil union.

Because the FMLA does not provide coverage for domestic partners or those in a civil union, employees in such partnerships can sometimes be eligible for up to 24 weeks of unpaid leave in Colorado under the new law. For example, if the employee takes the 12 allotted weeks of unpaid leave under the FCA first, the employee is still eligible for FMLA leave for a relationship covered under the federal statute. However, if the employee takes leave under the FMLA, the employee will have simultaneously used his or her FCA leave and will not be eligible for an additional 12 weeks under the state law. Employers who do not comply with the FCA will be liable for the same damages they would be liable for under the FMLA for qualified leave.        

Employers should amend their leave policies to comply with the FCA, currently set to take effect on August 7, 2013. However, if a referendum petition is filed against the FCA, SGR attorneys will notify clients with a client alert that employers will not need policies to take effect until after passage of the FCA in the general election in November 2014.