RULES CONCERNING EMPLOYEE JOB PROTECTION, ANTI-RETALIATION AND ANTI-INTERFERENCE

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Code of Colorado Regulations › 1100 Department of Labor and Employment › 1107 Division of Family and Medical Leave Insurance › 7 CCR 1107-7

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DEPARTMENT OF LABOR AND EMPLOYMENT

Division of Family and Medical Leave Insurance

REGULATIONS CONCERNING EMPLOYEE JOB PROTECTION, ANTI-RETALIATION AND ANTI-

INTERFERENCE

7 CCR 1107-7

[Editor’s Notes follow the text of the rules at the end of this CCR Document.]

_________________________________________________________________________

7.1

Statements of Authority, Purpose, and Incorporation by Reference

This regulation is adopted pursuant to the authority in section C.R.S. § 8-13.3-509 and is

intended to be consistent with the requirements of the State Administrative Procedures Act,

C.R.S. § 24-4-101 et seq. (the “APA”), and the Paid Family and Medical Leave Insurance Act,

sections 8-13.3-501 et seq. (the “FAMLI Act”), C.R.S.

The general purpose of these Employee Job Protection and Anti-Retaliation and Anti-Interference

rules is to exercise the authority of this Division to enforce and implement Colorado legislative

enactments and accompanying rules protecting against retaliation for, or interference with, the

exercise of protected rights, and requiring that employees receive various forms of notification of

their rights under the Paid Family and Medical Leave Insurance Act (C.R.S. Title 8, Article 13.3,

Part 5). These Rules are adopted pursuant to Division authority in C.R.S. § 8-13.3-509(7).

29 C.F.R. § 825.215(c)(2) (2025) is hereby incorporated by reference. Earlier versions of such

laws and regulations may apply to events that occurred in prior years. Such incorporation

excludes later amendments to or editions of the statutes and regulations. These statutes and

regulations are available for public inspection at the Colorado Department of Labor and

Employment, Division of Family and Medical Leave Insurance, 707 17th Street, Denver, CO

80202. Copies may be obtained from this Division at a reasonable charge or can be accessed

electronically from the website of the Colorado Secretary of State. Pursuant to C.R.S

he statutes and regulations. These statutes and

regulations are available for public inspection at the Colorado Department of Labor and

Employment, Division of Family and Medical Leave Insurance, 707 17th Street, Denver, CO

80202. Copies may be obtained from this Division at a reasonable charge or can be accessed

electronically from the website of the Colorado Secretary of State. Pursuant to C.R.S. § 24-4-

103(12.5)(b), the agency shall provide certified copies of the statutes and regulations

incorporated at cost upon request or shall provide the requestor with information on how to obtain

a certified copy of the material incorporated by reference from the agency originally issuing the

statutes. All Division Rules are available to the public at famli.colorado.gov.

If any part of these rules is held invalid, the remainder shall remain valid, and if any part is held

not wholly invalid, but in need of narrowing, it will be retained in narrowed form.

7.2

Definitions and Clarifications

Unless otherwise indicated, terms used here that are defined in the FAMLI Act have the same

definition as they do under the FAMLI Act.

“Complaint” has the same meaning as 7 CCR 1107-8, Section 8.2.5.

“Eligible employee” means an employee entitled to the protections described at C.R.S. § 8-13.3-

509(1).

"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

Code of Colorado Regulations

Secretary of State

State of Colorado

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Division of Family and Medical Leave Insurance

n 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

Code of Colorado Regulations

Secretary of State

State of Colorado

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7 CCR 1107-7

Division of Family and Medical Leave Insurance

substantially similar duties and responsibilities, which must entail substantially equivalent skill,

effort, responsibility, and authority.

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

“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:

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

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;

Reducing the pay or hours of work of an employee or denying an employee additional

hours of work;

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

Failing to reinstate an employee following a return from leave, in accordance with Section

7.3 of these rules;

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.

ollowing a return from leave, in accordance with Section

7.3 of these rules;

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.

Initiating an eviction proceeding or evicting an employee from employer-provided housing

because they engaged in protected activity.

Engaging in conduct that would reasonably have the effect of discouraging a reasonable

employee from accessing family and medical leave insurance benefits;

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.

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).

“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

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).

“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:

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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;

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;

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

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;

Information requests prohibited by 7 CCR 1107-3, Section 3.8.9 or 7 CCR 1107-5,

Section 5.3.8;

Requiring the production of information defined as confidential under federal or state laws

or regulations;

Failing to cooperate with the Division in processing a request for family and medical leave

insurance benefits;

Failing to cooperate with the Division’s compliance activities that implicate an individual’s

rights under the FAMLI Act and its implementing regulations;

Inducing or attempting to induce an individual to prospectively waive a right under the

FAMLI Act or its implementing regulations;

ng to cooperate with the Division in processing a request for family and medical leave

insurance benefits;

Failing to cooperate with the Division’s compliance activities that implicate an individual’s

rights under the FAMLI Act and its implementing regulations;

Inducing or attempting to induce an individual to prospectively waive a right under the

FAMLI Act or its implementing regulations;

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

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

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.

7.3

Clarifications Regarding Job Reinstatement

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.

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.

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.

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unpaid, where the employer reasonably believes the individual will

return to work. Where employment is seasonal, an individual is not considered employed

between seasons.

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.

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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).

Military leave protected by federal or state laws or regulations is considered

“employment.”

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.

Leave is considered to have “commenced” whenever an employee leaves work and

utilizes paid family and medical leave.

Continuous leave commences once at the outset of the leave. This means that if

a covered individual has not been employed with their current employer for at

least 180 days before the beginning of the leave, they will not become entitled to

the rights described at C.R.S. § 8-13.3-509(1) with regard to that employer during

their continuous leave, regardless of whether their 180th day of employment

occurs during their continuous leave.

Intermittent leave and reduced leave schedule commence upon each covered

absence. This means that if a covered individual has not been employed with

their current employer for at least 180 days before their first covered absence,

but their 180th day of employment occurs before a subsequent covered absence,

they will become entitled to the rights described at C.R.S. § 8-13.3-509(1) with

regard to covered absences from that employer occurring after their 180th day.

An employer is not obligated to reinstate an employee:

ot been employed with

their current employer for at least 180 days before their first covered absence,

but their 180th day of employment occurs before a subsequent covered absence,

they will become entitled to the rights described at C.R.S. § 8-13.3-509(1) with

regard to covered absences from that employer occurring after their 180th day.

An employer is not obligated to reinstate an employee:

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;

Where the covered individual’s family and medical leave extends beyond the maximum

benefit duration provided by C.R.S. § 8-13.3-505;

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;

Where the employee’s written contract for employment with the employer has ended

pursuant to its terms;

Where an employee’s position is eliminated due to legitimate downsizing or

reorganization;

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;

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;

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icans with Disabilities Act ("ADA"), C.R.S. § 24-34-402.3,

or other applicable state or federal law;

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;

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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

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

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 statement that the employer intends to deny employment reinstatement when the leave

has ended;

The reasons behind the decision to deny reinstatement and the grounds for denying

reinstatement as provided by subsection (2) of this rule;

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

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

Under this Rule, an “equivalent position” as defined in Section 7.2 of these rules includes, but is

not limited to:

Base pay - Providing an employee with equivalent base pay upon returning from family

and medical leave. Base pay includes bonuses as described by 29 C.F.R. §

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

from family

and medical leave. Base pay includes bonuses as described by 29 C.F.R. §

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.

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.

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).

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.

ve. 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.

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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).

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.

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.

Nothing in these Rules requires an employer to ignore an employee’s performance or retain an

underperforming employee.

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.

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

ired 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.

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.

7.4

Employment Agencies

nd 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.

7.4

Employment Agencies

When an employee is employed by an employment agency and the employment agency’s client

(“client employer”), both employers are responsible for compliance with the FAMLI Act.

Employees who are employed by both an employment agency and a client employer must be

counted by both employers to determine employer status, and premium liability under the FAMLI

Act and its implementing regulations, regardless of whether the employee is maintained on one or

both of the employers’ payrolls. However, only one of these parties need pay premiums pursuant

to the agreement between the employment agency and the client employer.

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Under these Rules, employment agencies are responsible for the following:

Providing the required notice under C.R.S. § 8-13.3-511 to its employees;

Maintaining any health care benefits during the family and medical leave benefit period

as described by section C.R.S. § 8-13.3-509(2);

Restoring an eligible employee to an equivalent position upon return from family and

medical leave; and

Maintaining all records by the FAMLI Act and its implementing regulations with respect to

their employees.

Under these Rules, client employers are responsible for the following:

Keeping basic payroll and personnel records with respect to any such employees; and

Complying with the anti-retaliation and anti-interference provisions of C.R.S. § 8-13.3-

509(4).

mily and

medical leave; and

Maintaining all records by the FAMLI Act and its implementing regulations with respect to

their employees.

Under these Rules, client employers are responsible for the following:

Keeping basic payroll and personnel records with respect to any such employees; and

Complying with the anti-retaliation and anti-interference provisions of C.R.S. § 8-13.3-

509(4).

Employment agencies shall meet all of their obligations under the FAMLI Act even when their

client employer is not in compliance with the law or does not provide support to the employment

agency in meeting these responsibilities.

For purposes of calculating 180 days of employment pursuant to C.R.S. 8-13.3-509(1), an

employment agency shall not include as part of its calculation any days on which a covered

individual was awaiting a work assignment in a staffing pool.

7.5

Fines and Interest

In addition to any remedies available under C.R.S. § 8-13.3-509(6), the Division will assess a fine

of $500 per covered individual, per each violation under C.R.S. § 8-13.3-509.

Awards for damages and equitable relief under C.R.S. § 8-13.3-509(6) will accrue interest from

the date of the award pursuant to C.R.S. § 5-12-102.

7.6

Language Accessibility

The Division will make reasonable efforts to make forms and communications under these rules available

in an individual’s primary language, subject to the Division’s sole discretion based on available resources.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.