While I’m not an FMLA leave expert, I’m frequently asked questions by our COBRA clients about The Family and Medical Leave Act (FMLA) and how it impacts COBRA. These questions range from “what if the employee doesn’t pay their portion of premium during leave?” and “At what point does COBRA come into play?” To get to the heart of these questions, a refresher of the rules around FMLA is needed. If you are already an FMLA expert, be patient with me or skip below after the end of all the bullet points to find the COBRA-related FAQs.
FMLA Basics:
Eligible employers:
- Private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or previous calendar year,
- Public agencies (including Federal, State, and local government employers, regardless of the number of employees), and
- Local educational agencies (including public school boards, public elementary and secondary schools, and private elementary and secondary schools, regardless of the number of employees).
Eligible employees:
- Work for a covered employer for at least 12 months,
- Have at least 1,250 hours of service with the employer during the 12 months before their FMLA leave starts, and
- Work at a location where the employer has at least 50 employees within 75 miles.
Types of leaves:
- The birth of a child or placement of a child with the employee for adoption or foster care
- The care for a child, spouse, or parent who has a serious health condition
- A serious health condition that makes the employee unable to work
- Reasons related to a family member’s service in the military including:
- Qualifying exigency leave – leave for certain reasons related to a family member’s foreign deployment
- Military caregiver leave – leave when a family member is a current service member or recent veteran with a serious injury or illness
Length of leave:
- Up to 12 workweeks of leave in a 12-month period for any FMLA leave reason except military caregiver leave, and
- Up to 26 workweeks of military caregiver leave during a single 12-month period
Employer requirements for group healthcare insurance benefits while on leave:
- Continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave.
- Continue paying what the employer has always paid towards insurance premiums.
FMLA FAQs as they relate to COBRA:
What about any insurance premium the employee is responsible for paying during leave?
The employee must continue to pay their portion of insurance premiums while they are on leave. Employers must provide a written due date for employees to pay their portion of the insurance premium with a 30-day grace period.
What if the employee fails to pay their portion of the insurance premium?
If payment is not made on time, the employer must provide written notice to the employee that the payment has not been received, and that his or her insurance coverage will end at a specified date at least 15 days after the date of the written notice unless payment is received by that date. This written notice must be mailed no less than 15 days before the end of the grace period. Please note, any cancellation does not constitute a COBRA qualifying event. Indeed, there may be a gap in coverage during the FMLA leave if the employee does not pay required premiums.
The lapse of coverage due to an employee’s failure to pay does not impact any of the employer’s other FMLA obligations. The employer must still reinstate the employee upon return from leave and reinstate the same insurance benefits they had before the leave started (assuming no plan changes due to renewal).
Are there any options other than cancelling insurance when employee premiums are not paid?
Yes, an employer can elect to maintain the employee on its insurance and recover the unpaid premiums when the employee returns to work. If the employee decides not to return to work after taking FMLA leave, the employer may have recourse to collect premiums from the now ex-employee. See my blog article: Who Knew? Is Premium Recovery Possible With An FMLA Leave?
When does COBRA come into play?
If an employee does not return to work within the 12 weeks of FMLA leave, then COBRA kicks in. The employer must decide whether to use “Termination of Employment” or “Reduction of Hours” as the COBRA qualifying event and use the last day of the 12-week FMLA leave as the qualifying event date.
For more information about FMLA leave, download the Department of Labor’s “Family and Medical Leave Act Employer Guide.”
Are you interested in outsourcing FMLA Administration?
We are asked periodically if we provide FMLA administration. Currently we do not, but our business has grown over 20 years by adding to our menu of services as our clients require them. Please let me know if you are interested in outsourcing your FMLA administration as I’d like to gauge the demand for adding the service to our alphabet soup suite.