By Charlie Bross
If the employer pays for the employee's share of health plan premium payments during FMLA leave, the employer is entitled to recover these premium payments whether or not the employee returns to employment.
After an employee's FMLA leave is over, the employer is entitled to recover any employer premium contributions it made during the leave except if the reason the employee does not return is:
If the employer cannot recover its share of health plan premium's because of the continuing serious health condition of the employee, spouse, parent or child, the employer can require a medical certification verifying the condition. Also, the employer cannot withhold payment of claims pending recovery of these premiums.
- The employee's or family member's serious health condition precludes the employee from returning, or
- Other circumstances beyond the employee's control, including:
- The employee's spouse is unexpectedly transferred to a job location requiring relocation
- A relative other than a child, spouse or parent has a serious health condition requiring the employee's care
- The employee is laid off
- The employee is a key employee who is not reinstated after FMLA leave
When FMLA runs concurrently with another paid leave, the employer cannot recover its share of health insurance or non-health benefit premiums if the employee does not return.
"Return" after FMLA leave is defined by the DOL as having returned to work for at least 30 calendar days. This prevents the employee from returning for just a short time (such as a few days) and then terminating employment to avoid having to pay the employer's premium contribution.
COBRA should be offered to an individual under the following two circumstances:
This would be true regardless of whether the employee's health benefits were or were not retained during the FMLA leave.
- The employee's 12 weeks of FMLA have been exhausted (FMLA's health benefit maintenance requirements cease because the FMLA leave is over)
- The employee gives unequivocal notice of intent not to return (FMLA's benefit maintenance requirements cease because the employee terminates employment)
If the employer maintained non-health benefits during the leave (such as life or disability), after the end of the leave the employer can recover any premiums paid during the leave, whether those amounts would normally be paid by the employer and/or employee, and whether or not the employee returns from the leave.
For more tips, information, or suggested procedures on how to manage your FMLA compliance responsibilities, or the ability to earn a Certified FMLA Administrator designation, go to http://HRcertification.com/FMLA.asp