On January 20, 2023, the Division of Insurance issued a Consumer Advisory that announced that plans issued in the state must cover certain gender-affirming care services starting in 2023. Gender-affirming care services are also included as an essential health benefit (EHB) in the state’s benchmark plan. The division also prepared a PDF guide for this coverage.

Employers with plans governed by the state or with policies that adopted the state’s benchmark plan should be aware of this new area of required coverage.

Consumer Advisory: Gender-Affirming Care Insurance Coverage Now Available (with link to PDF guide) »

On February 6, 2023, the Division of Insurance issued a Consumer Advisory reminding insurers regulated by the state of their obligation to cover contraceptive services to insureds at no cost. This obligation prohibits insurers from charging copayments, deductibles or coinsurance amounts to the individual seeking those services.

The ACA requires insurers to provide this coverage for a range of recommended preventative services (including tubal ligation surgery) and prohibits imposing any cost-sharing on insureds receiving those services. In addition, state law obligates insurers regulated by the state to allow for 12-month oral birth control prescriptions.

The division issued this advisory in response to complaints that consumers were asked to pay a portion of the costs associated with preventative services covered by the ACA. Employers with plans regulated by the state should be aware of this obligation.

Consumer Advisory: Insurance Companies Must Provide Reproductive Health Services Access in Compliance with the Affordable Care Act »

Starting in 2023, certain employers registered to do business in the state are required to participate in the Colorado Secure Savings Program. Those businesses that have five or more W-2 employees, have been in business for at least two years, and do not offer those employees a qualified retirement benefit must register with the program. The program is a government-sponsored savings program to which employees can make contributions via automatic paycheck deductions, which are then deposited into an IRA.

There are different deadlines by which businesses must register with the program, depending upon the size of the employer (as measured by the number of employees in the business). Employers with 50 or more employees must register by March 15, 2023. Employers with 15 – 49 employees must register by May 15, 2023. Employers with 5 – 14 employees must register by June 30, 2023.

Employers who offer qualified retirement programs to their employees can obtain an exemption from this requirement.

Information about the registration process, including how to obtain an exemption, can be found here:

Colorado Secure Savings – Employer Program Details »
Colorado Secure Savings Program Act »
Colorado Secure Savings Website »

As mentioned in our articles on the state’s Family and Medical Leave Insurance (FAMLI) program in the May 24 and September 13, 2022, editions of Compliance Corner, Colorado employers must register with the FAMLI program and begin deducting employees’ shares of FAMLI Program premiums from employee paychecks.

Under the FAMLI Program, eligible employees may receive up to 12 weeks of paid family and medical leave where leave is needed due to birth, adoption, family member care, self-care, exigency leave, or safe leave, as well as up to four additional weeks of paid leave related to pregnancy and childbirth. The paid benefit is funded by premiums collected by employers and submitted to the program.

Employers with employees in the state should consult with counsel if they have not registered by the deadline.

CO FAMLI Website »

On August 26, 2022, the Department of Labor and Employment’s Division of Family and Medical Leave Insurance (the division) adopted rules on benefits and employer participation in the state’s Family and Medical Leave Insurance program (FMLI). We covered FMLI and earlier rules issued by the division in the May 24, 2022, edition of Compliance Corner.

Although the program does not start until January 1, 2024, the new rules require employers (even those who choose to use a private plan rather than the state plan) to register with the division by January 1, 2023. Employers must also submit wage reports on the same schedule that they remit their premiums. An employer with no Colorado employees will not be required to remit premiums, submit wage reports or otherwise participate in the FAMLI program.

The new rules also outline the procedure for employees to apply for the benefit. Employees must apply to the division 30 days before the expected start date of the leave, although they can have up to 30 days after the leave begins to apply if the circumstances warrant it. The division informs both the employer and the employee that the application is properly filed within five business days and determines whether the applicant qualifies for the benefit within two weeks after the application is submitted. The rules also allow employers to require their employees to let them know of the need for the leave independently of the application to the division, in the same manner as requests for other leave as required by employer policy.

The division will inform both the employer and the employee of its determination. If the division grants the benefit, it will also inform both parties of the duration of the leave. If the employer requests it, the division will also provide the employer with limited information necessary for the employer to coordinate FAMLI benefits with other benefits for which the claimant is eligible, including the wage replacement amount and the reason for leave. Such information provided by the division must be stored and maintained in accordance with all applicable federal, state, and local confidentiality laws and regulations.

The new rules give the employer and employee the right to appeal the division’s determination. An employer may file a grievance with the division if it has a good-faith belief, supported by evidence, that the division has granted benefits to an employee either in violation of the FAMLI Act or if the grant unduly disrupts the employer’s operations. Employees can appeal a denied application within 30 days of the adverse decision; the division will designate a hearing officer and hold an appeal hearing, in which both the employer and employee can participate. The hearing officer’s decision is subject to judicial review.

The new rules also impose certain obligations upon an employee on this leave, including the obligation to inform the division of any change that could affect the duration of that leave. If the division adjusts the duration of the leave as a result, then the division will inform the employer.

In addition to these procedural rules, the new regulations include some clarifications. For instance, a “covered individual” who may receive benefits is one who has earned $2,500.00 from any combination of employers, and a claimant need not earn $2,500.00 from their current employer to meet the threshold. In addition, the division will determine whether a person is considered a “family member” whose serious health condition warrants a grant of benefit to an applying employee by considering not only a significant personal bond that is or is like a family relationship, but also several other factors while looking at the totality of the circumstances surrounding the relationship.

Employers with Colorado employees should be aware of these new clarifications and procedures.

Regulations Concerning Benefits and Employer Participation Requirements »

On June 24, 2022, the Department of Labor and Employment issued guidance for the state’s Healthy Families and Workplaces Act (the Act). The guidance focuses on how sick pay accrues and leave taken for public health emergencies. The Act was covered in our July 21, 2020, and September 1, 2020, editions of Compliance Corner.

Starting in 2021, the Act requires employers to provide employees one hour of paid sick leave for every 30 hours worked, up to 48 hours per year, and unused hours can carry forward into the next year. The guidance states that any unused hours carried over into a subsequent year can be counted against the 48 hour/year total in that year. This also means that if the employee carried over 48 hours from the previous year, then they do not earn any additional sick leave in the current year.

The Act also provides for public health emergency leave for use when leave is associated with a public health emergency, such as the COVID-19 pandemic. This leave supplements the paid sick leave under the Act with up to 80 hours. The paid leave already accrued as of the date the public health leave is requested will count towards the public health leave. For instance, if an employee requests public health leave due to COVID-19, and they have 10 hours of paid sick leave accrued as of the date of their request, the employer must add 70 more hours of supplemental leave. The employee can use the public health leave granted in this way before they use their accrued sick leave.

Employers in the state or with employees in the state should be aware of this guidance.

Interpretive Notice and Formal Opinion (INFO) #68 »

In January 2022, the Department of Labor and Employment promulgated new rules relating to the state’s paid family and medical leave insurance (FAMLI) program. The regulations further define key terms relating to the collection and remittance of premiums into the program, as well as provide procedures for local governments to opt out of the program. In addition, the department posted FAQs on its website providing much of this information in a condensed format.

In 2020, voters passed the statute that created FAMLI. Starting on January 1, 2024, the program provides employees who work in the state and earn at least $2,500 at their jobs with up to sixteen weeks of paid leave for the following reasons:

• Caring for their own serious health condition.
• Caring for a new child during the first year after the birth or adoption or for foster care of a new child.
• Caring for a family member with a serious health condition.
• When a family member is on active-duty military service or is called for active-duty military service.
• When the individual or the individual’s family member is a victim of domestic violence, stalking or sexual assault.

This leave is designed to run concurrently with federal FMLA. Note that FAMLI allows employers to use a private plan rather than the state’s plan. To do this, the private plan must provide the same rights, protections and benefits as the public plan. Employers may require employees to contribute to the private plan, but no more than what they would have contributed to the state plan.

The leave is paid for through a fund to which employers with at least one employee in the state and employees working in the state contribute premiums. Starting on January 1, 2023, FAMLI requires employers to remit those premiums to the fund. The premiums take the form of a .9% payroll tax, split 50/50 between employer and employee. The new regulations define the wages that are subject to the payroll tax to include salary or hourly wages, commissions, payments on a piecework basis, bonuses or other forms of compensation (such as board, lodging or payments in kind). The department’s employer FAQs provide formulas for calculating premiums. Note that employers with fewer than 10 employees are not required to pay the employer share of the premiums (although they are still required to remit the employee share to the fund). Employers that report ten or more employees in the first quarter of 2023 will be required to pay the employer share of the premium for all calendar quarters in calendar year 2023.

The new regulations also require employers to remit the premiums on a quarterly basis. Self-employed workers can also participate in the program, and the new regulations outline the process they must use to do so, including a quarterly earnings report as well as quarterly remittance of premiums.

The fund sends payments directly to employees on FAMLI leave, and those payments are capped at $1,100 per week. Employers are not responsible for paying salary while an employee is on FAMLI leave. According to the department’s employer FAQs, employees are not required to use PTO before using FAMLI leave, but employers can allow employees to use PTO to “top off” the remaining balance of their weekly wage.

The new regulations also provide a process through which local governments can opt out of the FAMLI program. To do so, the rules require local governments to hold a vote after providing written notice that they will hold such a vote. If the local government votes not to participate, then it must provide its employees with written notice of the decision within 30 days, along with notice that employees can still opt into the program (participating in much the same way as self-employed workers do).

Employers in the state or with at least one worker in the state should be aware of the law and the new regulations. Further guidance and additional regulation are expected in the next year to clarify and administer the FAMLI program.

Colorado Paid Family and Medical Leave Insurance Act »
Regulations Concerning Paid Family Medical Leave Program (Premiums) »
Regulations Concerning Paid Family Medical Leave Program (Local Governments) »
Employer FAQs »

On January 19, 2022, Commissioner Conway adopted Emergency Regulation 22-E-03. This regulation creates a special enrollment period in the state that allows enrollment in an individual health benefit plan from January 16, 2022, through March 16, 2022. The commissioner adopted this emergency regulation in response to local wildfires and the rise of the Omicron variant. Any coverage provided by an individual health plan that a person enrolls in during this special enrollment period will have an effective date of the first day of the month following plan selection.

Employers should be aware that this special enrollment period is for qualified individuals applying for new coverage. It does not apply to employees who are enrolled in the employer’s group health plan (if the plan complies with the ACA), absent a separate triggering event.

Emergency Regulation 22-E-03 »

On January 19, 2022, Commissioner Conway adopted Emergency Regulation 22-E-04. This regulation requires carriers regulated by the state to immediately cover all FDA authorized or approved vaccines for COVID-19 throughout the duration of the COVID-19 recovery, including all associated costs of administration and no cost-sharing. In addition, the regulation establishes a reasonable rate for COVID-19 vaccine administration as $41.18 and requires carriers to reimburse out-of-network providers administering COVID-19 vaccines at no less than this rate for these services.

Employers with plans issued by carriers regulated in the state should be aware of this development.

Emergency Regulation 22-E-04 »

On January 12, 2022, Commissioner Conway adopted amendments to Regulation 4-2-73. This regulation applies to all carriers marketing and issuing individual and group health benefit plans subject to the state’s regulation. The regulation requires carriers to provide coverage for the federal Food and Drug Administration (FDA)-approved medication prescribed for pre-exposure prophylaxis (PrEP) without copayment or cost-sharing for individuals who, according to their provider or pharmacist, are indicated for PrEP. The amendments update the requirements for individual and group health benefit plans to provide coverage for human immunodeficiency virus (HIV) pre-exposure prophylaxis (PrEP) as well as baseline and monitoring services.

Employers with plans regulated by the state should be aware of this development.

Regulation 4-2-73 »