Colorado Expands FAMLI To Include 12 Weeks Of Neonatal Care Leave

On January 1, 2026, parents of newborns receiving inpatient care in a neonatal intensive care unit (“NICU”) will be eligible for up to 12 weeks of leave while their newborns are in NICU. This leave is in addition to the 12 weeks of parental bonding leave already available under Colorado's FAMLI Act. Colorado is the first state to offer special Neonatal Care Leave.

The FAMLI Division is currently engaging in the rulemaking process and has posted proposed amendments on its website, so the specifics of Neonatal Care Leave are still coming into focus.

Neonatal Care Leave will be available to the parents of infants born before January 1, 2026 who are still receiving inpatient treatment in the NICU as of the new year. The leave benefit is only available, however, for qualifying absences from work on or after January 1, 2026.

With this new leave, employees with newborns who need NICU care may be eligible for up to cumulative total of twenty-four weeks (and in the case of pregnancy or childbirth complications, up to 28 weeks) of paid leave under the FAMLI program. When considering situations involving other types of leave provided by law, such as leave under the federal Family and Medical Leave Act (“FMLA”) an employee could be eligible for up to 36 weeks of leave (or 40 weeks, in the event of pregnancy or childbirth complications).

Employers might be surprised to learn that an employee could take such a long leave period. For the 36-plus weeks of leave scenario to occur, an employee would first take FMLA leave, which the Division has said does not automatically draw down FAMLI leave due to what the Division has described as “one-way” concurrency (i.e., taking FAMLI draws down FMLA leave, but the opposite is not automatically true), and, per the Division's interpretation, an employer cannot require an employee to report an FMLA absence as a FAMLI absence).¹ Thus, though FAMLI leave runs concurrently with FMLA, employers cannot  mandate that FMLA leave runs concurrently with FAMLI leave (though they can impose requirements for receiving paid leave under a company policy). After the expiration of FMLA leave, the employee would take FAMLI Neonatal Care Leave for up to 12 weeks, provided their infant is in the NICU for all 12 weeks, and then take the final 12 to 16 weeks as parental bonding leave. This could be done as continuous or intermittent leave. Employers should consider how the possibility of extended leave will impact business operations and plan accordingly.

Employers should keep an eye out for the Division's adopted amendments and revisit their handbooks and any relevant leave policies to ensure compliance with the new leave regulations and make any necessary changes regarding how company-provided leave interacts with the new Neonatal Care Leave. For example, employers who “top off” the state's wage replacement benefit should clarify whether such topping off will apply to the entire duration of FAMLI leave, or only some portion of it.

Remember, it is not enough to simply have a paid parental leave policy in place­—if the employer provides its own parental leave, the policy must clarify that the employer's paid leave benefit runs concurrently with FAMLI and FMLA leave, not in addition to those leaves. For more information, see  https://www.employerslawyersblog.com/2024/08/preventing-double-dipping-ensure-that-paid-parental-leave-runs-concurrently-with-famli-leave-and-fmla.html

One final note: SB25-144, which introduced Neonatal Care Leave, reduced FAMLI premiums from 0.9% of wages per employee down to 0.88% per employee. The reduced premium takes effect January 1, 2026.

Footnote

1. This interpretation of the law is so far untested in courts, and may employers are struggling with the impact to operations of having an employee on leave for such extended periods.

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