Family and Medical Leave Insurance Program (FAMLI) Overview & FAQ

Local governments, including school districts and BOCES (collectively referred to as school districts), have three options regarding their participation in the FAMLI program, as outlined below.

Credit: FAMLI and Local Governments Webinar (CDLE, FAMLI Division - April 29, 2022)

1. Participate in FAMLI. This option means the school district agrees to pay the employer share of the premium (0.45% of wages if the district has 10 or more employees and 0% of wages if the district has fewer than 10 employees) and remit employees' share of the premium along with wage data to the FAMLI Division once a quarter.
• Impact on district employees: Employees will see a payroll deduction starting January 1, 2023, and will be able to apply for FAMLI benefits starting January 1, 2024. If the district opts into FAMLI, district employees cannot individually opt out.
  
  
2. Decline all participation in FAMLI. In order to fully decline participation in FAMLI–meaning that the district does not pay premiums or assist employees who self-elect coverage by facilitating voluntary payroll deductions, remitting employees' share of the premium, or submitting wage data to the FAMLI Division once a quarter–the local board of education must hold a vote to decline participation by the end of 2022. The board must then notify the FAMLI Division of its vote, in writing on district letterhead, by January 1, 2023. The decision to decline FAMLI participation must be revisited every 8 years from the declination vote, so boards will need to ensure that they have adequate measures in place to track and reconsider the district's level of participation in this program on an ongoing basis.
• Impact on district employees: Employees still have the right to participate in FAMLI even if the board votes to opt out. Employees would self-elect coverage the same way self-employed workers would and would need to report their own wages and remit their share of the premium.
  
  
3. Decline employer participation in FAMLI. This option allows districts to decline participation in FAMLI–meaning that the district does not pay premiums–while still allowing the district to assist employees who self-elect coverage by facilitating voluntary payroll deductions, remitting the employees' share of the premium, and submitting wage data to the FAMLI Division once a quarter. 
• Impact on district employees: Employees who voluntarily enroll will see the deductions from their paychecks if the district chooses to facilitate their employees' participation by choosing to be responsible for remitting the employee share of the premium and submitting wage data once a quarter to the FAMLI Division, streamlining the process for district employees.

Opting out of FAMLI

If a school district wishes to opt out of FAMLI, the local board must hold a vote to decline participation by the end of 2022 and notify the FAMLI Division of its vote, in writing on district letterhead, by January 1, 2023.

Required board declination vote

Credit: FAMLI and Local Governments Webinar (CDLE, FAMLI Division - April 29, 2022)

School boards are required to vote to decline participation in FAMLI. This vote must follow the board's policy or procedures for other formal votes–for example, if board policy requires that a motion must be approved by a majority of the members present, the policy also applies to the board's vote to decline participation in FAMLI; boards will need to refer to their local policies.

Public notice of the vote must be given in the same manner as any other business before the board (i.e., the voting on the district's level of participation in FAMLI should be included as an item on the board's agenda). The board may discuss and vote to decline participation in FAMLI during a regular or special meeting.

State regulations require the board to take/hear testimony, or public comment, according to the board's policy or procedures for public participation before voting to decline participation in FAMLI. School districts are also required to notify district employees, in writing, before the board votes and to provide district employees with information regarding the board's voting process and the opportunity to submit comments through the board's public participation process.

Neither the law nor regulations require school boards to pass a resolution related to the district's participation in FAMLI; the regulations specify that local boards must vote in order to opt out of FAMLI. Accordingly, CASB does not have a sample resolution for boards to opt out of participating in FAMLI and boards should follow their local policies on voting methods.

Notice to district employees

If a school board votes to opt out of FAMLI, it must provide district employees with a written individual notice of the board's declination vote within 30 days following the vote. This notice must include all of the following:

• The board's declination vote (the date the vote was taken and the result of the vote)
• The impact toward FAMLI (the employee's right to self-elect coverage and whether the district will assist an employee who voluntarily enrolls)
• The impact toward other paid family and medical leave insurance coverage
• An explanation of the differences between FAMLI benefits and any private plan offered by the district
• A statement of which employees, if any, are eligible for job protected leave under the federal Family and Medical Leave Act (FMLA)
• Information regarding district employees' right to voluntarily opt into FAMLI
• Contact information for the FAMLI Division

Credit: FAMLI and Local Governments Webinar (CDLE, FAMLI Division - April 29, 2022)

School districts must also display a notice containing information regarding employees' right to self-elect coverage and voluntarily participate in FAMLI, regardless of the board's vote to decline participating in FAMLI as an employer, and contact information for the FAMLI Division in a conspicuous and accessible place–which may include emailing the notice to employees and/or publishing the notice in a web- or app-based platform used by employees. The FAMLI Division has created a poster that districts may use to comply with this notice requirement. Districts may request printed materials or copies of this poster in other languages from the FAMLI Division.

Registering with the FAMLI system

Every local government employer, including school districts, must register with FAMLI’s online system, whether they choose to participate in FAMLI or not. Registering with the system and uploading your documents will enable FAMLI to keep track of local government employers’ current intentions for participation, the obligation to revisit a declination vote after eight years, and enable local government employers to provide an affordable benefit if they choose to remit premiums and wage data for employees who self-elect coverage.

FAMLI’s online employer service system is expected to be available for registration during the Fall of 2022, during which time the FAMLI Division will have support staff available to help districts navigate the process. Please contact the FAMLI Division directly with questions regarding registration or help with FAMLI's system, once it is available this fall.

Notice of vote to FAMLI Division

After the district has voted to decline participation in FAMLI and has registered with FAMLI's online system, the district must notify the FAMLI Division of its declination vote by January 1, 2023. The notification must be written on district letterhead and must indicate the date the vote was taken and the result of the vote (whether the board voted to decline all participation in FAMLI or to decline employer participation in FAMLI, but still assist district employees who self-elect coverage). The notification may then be submitted to the FAMLI Division via FAMLI's online system (this system is expected to be available during the Fall of 2022).

School districts that plan to participate in FAMLI do not need to notify the FAMLI Division of their intent or vote to participate.

Reconsideration of opt-out vote every 8 years

School boards that vote to opt out of FAMLI must reconsider and revisit this decision at least every 8 years from the date when the board voted to decline participation in FAMLI. FAMLI's online system, with which all school districts must register, will enable FAMLI to keep track of school boards' obligation to revisit a declination vote after 8 years, but local boards should independently ensure that they have adequate measures in place to track this timeline. FAMLI's online system is expected to be available and open for registration during the Fall of 2022.

Frequently Asked Questions

Q1. When are school boards required to vote to opt out of FAMLI?

A. School boards can vote anytime during 2022. Because FAMLI's online registration system is not expected to go live until Fall 2022, boards should anticipate and be prepared to vote to decline participation in the program closer to the start of the 2022-23 school year. Boards are then required to notify the FAMLI Division, through the online system, of its decision to opt out by January 1, 2023.

Q2. What is the "180-day rule"? Are boards required to take any action relating to FAMLI in July 2022?

A. No, boards are not required to take any action or vote to opt out of FAMLI in July 2022; boards can vote to decline participation in FAMLI anytime during 2022. The "180-day rule" consists of two provisions in the FAMLI regulations for local governments that state:

• "Employees must also be notified in writing, both posted and directly notified no later than 180 days of the pending or upcoming return to or withdrawal of coverage pursuant to this regulation." 7 CCR 1107-2, Rule 2.5(F)(2); and
  
  
• "A declination vote will not take effect with a resulting change in coverage until after 180 days after the vote, to allow individual employees the opportunity to opt into the benefits program pursuant to 8-13.3-514 C.R.S., should individuals choose to elect coverage." 7 CCR 1107-2, Rule 2.6(A)(1).

These provisions apply to districts that either initially decide to participate in FAMLI and then, at a later point, vote to opt out of FAMLI, thereby resulting in a change/withdrawal of FAMLI coverage for district employees or when a district that has initially opted out of FAMLI decides to participate or re-participate in FAMLI, thereby creating a change/expansion of FAMLI coverage for district employees. In these scenarios, employees must be notified of these changes to their benefits at least 180 days in advance and any loss in their FAMLI benefits will not become effective until 180 days after the board has voted to opt out, again, after having previously opted in.

These provisions do not apply to a board's initial vote to opt out of FAMLI this year. Because the FAMLI program has not formally started yet (premiums will not be collected until January 1, 2023 and benefits will not be paid out until January 1, 2024), a board's vote to opt out during 2022 does not change district employees' existing benefits. Accordingly, the "180-day rule" will not apply until the second half of 2023, as benefits do not begin until 2024 and at that point, a board voting to opt out would have already either initially decided to opt in or have been automatically opted in to FAMLI due to its failure to vote and/or notify the FAMLI Division by the January 1, 2023.

Q3. What happens if the board does not vote to opt out in 2022 or notify the FAMLI Division of its vote by January 1, 2023?

A. School boards that do not notify the FAMLI Division of a vote to opt out by January 1, 2023 will be identified as participants and automatically opted in to the FAMLI program. The FAMLI Division will expect both wage data and premium payments due on April 1, 2023.

Q4. What does the board need to send to the FAMLI Division before the end of 2022?

A. After registering with FAMLI's online system (expected Fall 2022), a board that votes to opt out of FAMLI must notify the FAMLI Division on district letterhead and must indicate the date the vote was taken and the result of the vote. If the board voted to opt out, but still intends to assist district employees who choose to individually participate in the FAMLI program, this information must be included in the notification as well. This notification must be sent to the FAMLI Division via its online system and must be received by the FAMLI Division by January 1, 2023.

Q5. What are accepted forms of notifying the FAMLI Division?

A. Notification letters must be uploaded into the online FAMLI system after the district registers in Fall 2022. This will allow the FAMLI Division to properly track and log each notification letter to the corresponding local government. The FAMLI Division is requesting that local governments please not send their notifications via email or physical mail/post before the online system launches this fall.

Q6. Can district employees still participate in FAMLI even if the board votes to opt out?

A. Yes, even if boards vote to opt out of FAMLI as employers, district employees still have the option of opting in on their own (self-electing coverage/voluntarily participating). 

If the board votes to opt out of all participation → District employees can individually self-elect coverage. Employees would have to register with the FAMLI online system this fall as a self-employed worker and would be responsible for remitting their wage data and .45% of their wages to FAMLI every quarter.

If the board votes to opt out but still assist employees who opt in → Employees who voluntarily enroll will see deductions from their paychecks if the district chooses to facilitate their employees' participation by being responsible for remitting the employee share of the premium and submitting wage data once a quarter to the FAMLI Division.

Q7. Can district employees opt out if the district opts in?

A. No, if a school district opts into the FAMLI program district employees cannot opt out. 

Q8. Our school board members are paid; are they eligible for FAMLI program benefits?

A. Possibly, yes. The FAMLI Act defines an employee as 

"any individual, including a migratory laborer, performing labor or services for the benefit of another, irrespective of whether the common-law relationship of master and servant exists. For the purposes of this part 5, an individual primarily free from control and direction in the performance of the labor or services, both under the individual’s contract for the performance of the labor or services and in fact, and who is customarily engaged in an independent trade, occupation, profession, or business related to the labor or services performed is not an “employee.” C.R.S. 8-13.3-503(7).

It is unclear whether a school board member is both free from control and direction in the performance of their board duties and customarily engaged in an independent trade, occupation, profession, or business related to their board duties.

Additionally, the FAMLI Division has referenced the similarity between the FAMLI Act's definition of employee and that used by the Workers' Compensation program. The Workers' Compensation definition of an employee explicitly includes school board members (employee means "every elective official of the state, or of any county, city, town, or irrigation, drainage, or school district ..."). C.R.S. 8-40-202(1)(a)(I)(A). However, school board members who do not receive compensation "may be deemed not to be an employee" at the board's discretion, but this implies that compensated school board members are considered employees. C.R.S. 8-40-202(1)(a)(I)(B).

Boards who have authorized board member compensation should consult with their legal counsel for further guidance and specific advice.

Q9. How will FAMLI interact with or impact other benefits or types of leave? What about the federal FMLA or Healthy Families and Workplaces Act (State Paid Sick Leave)? Can an employee take double leave?

A. The FAMLI program was designed to be able to run concurrently with the FMLA (per this U.S. Department of Labor Office of Wage and Hour opinion letter, any leave that is taken for an FMLA-qualifying reason–whether it is paid or unpaid leave–is FMLA-protected and counts toward the employee's FMLA leave entitlement). 

FAMLI leave is different from paid sick days, so if an employee still has accrued paid sick days–under either the district's PTO policy or under the Healthy Families and Workplaces Act (HFWA)–or any remaining public health emergency leave, the employee would likely be entitled to use either or both their paid sick leave and FAMLI leave if the reason for taking the leave is appropriate for both program.

The FAMLI Division plans to issue further guidance addressing how FAMLI leave will interact with or impact other income-protection insurance programs offered, such as Short Term (STD) and Long Term Disability (LTD) insurance more thoroughly in future adoption of rules regarding coordination of benefits.

Q10. Are school districts required to offer benefit plans that meet or exceed FAMLI in order to opt-out? 

A. No, districts are not required to offer equivalent paid leave benefits in order to opt-out of FAMLI. In order to opt-out, a school board must vote to opt-out and notify the FAMLI Division of the vote as described above.

Other resources

• Preparing for FAMLI - Fact Sheet for Local Governments (CDLE, FAMLI Division)
• FAMLI and Local Governments Webinar (CDLE, FAMLI Division - April 29, 2022, via YouTube) | Presentation Slides 
• Break Room Poster (CDLE, FAMLI Division - general notice for employees)
• Colorado Department of Labor and Employment Division of Family and Medical Leave Insurance
• 7 CCR 1107-2, Regulations Concerning Local Government Participation with the Paid Family Medical Leave Program