Q: We have an employee out on leave under the Family and Medical Leave Act and have heard that she is not coming back to work. We’ve been maintaining her health coverage during the leave. If she doesn’t return, or if she tells us she’s not returning, do we have to offer her COBRA coverage?

A: In either of those scenarios she would be entitled to COBRA coverage, but the timing is slightly different for each. If she fails to return to work after her leave, a qualifying event for COBRA purposes occurs for the employee (and spouse or dependents) on the last day of FMLA leave. Her maximum COBRA coverage period, usually 18 months, would be measured from the last day of FMLA leave.

If the employee tells you before the end of her leave that she will not be returning to work, the qualifying event occurs on the date she informs you of her plans. Her maximum coverage period would begin on that day.

Should the rumors prove true and the employee not return, note that you may not require her to repay the insurance premiums you paid during her leave before offering her COBRA.

CBIA offers a COBRA Administration Service for our insurance plan members. If your group health coverage is through CBIA, we already maintain the information required to administer your health insurance plans and can offer you a cost-effective COBRA administration program that will take care of the many details required to stay in compliance with both federal and state laws.

Q: Does leave under the FMLA have to be taken all at once, or can it be broken up?

A: FMLA leave may be taken “intermittently” or on a “reduced-leave schedule” under certain circumstances. Intermittent leave is leave taken in separate blocks of time due to a single qualifying reason; the block of time may be as small as an hour. Examples include leave taken occasionally for medical appointments or several days at a time spread over several months, such as for chemotherapy treatments.

A reduced-leave schedule is a temporary reduction in the employee’s daily or weekly work schedule, generally from full-time to part-time. This might apply, for example, to an employee who is recovering from a serious health condition and is not strong enough to work full-time.

Employees are entitled to intermittent or reduced leaves for their own serious health conditions (including pregnancy-related medical conditions) or to help care for an immediate family member with a serious health condition.

After the birth of a child or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced-leave schedule only if the employer agrees to this. The employer’s agreement is not required, however, if the mother has a serious health condition related to childbirth or the newborn child has a serious health condition.

Q: When an employee takes time under FMLA to care for a sick child, is that employee entitled to substitute accrued paid sick days?

A: It depends. According to Department of Labor regulations, an employee may substitute paid sick days for unpaid FMLA time only if the employer’s uniform policy would normally allow paid sick days to be used for the particular purpose. If the employer does not usually allow this, the employer may (but is not required to) permit an employee to substitute the paid sick time.

The answer would be different if an employee wanted to use paid vacation or personal days. Those days may be substituted for any type of unpaid FMLA leave, including leave to care for a sick child, and an employer cannot place any restrictions on the employee’s right to do so.

Q: We know that under the state and federal Family and Medical Leave acts an eligible employee may take unpaid leave “to care for” a family member with a serious health condition. How is “to care for” defined?

A: The term is interpreted fairly broadly. According to U.S. Department of Labor (DOL) regulations, the term encompasses both physical and psychological care. It includes situations where, for example, because of a serious health condition, the family member is unable to care for his or her own basic medical, hygienic or nutritional needs, is unable to transport him- or herself to the doctor, and so on.

The term also includes providing psychological comfort and reassurance to a family member with a serious health condition who is receiving inpatient or home care. An employee may also take time off to make arrangements for changes in care, such as transfer to a nursing home.

Employees usually take this type of leave when they are the primary caretaker. However, they may take leave if they are needed to fill in for others who usually care for the family member, or when care responsibilities are shared with another family member or a third party.

Q: If an employee takes a leave under FMLA on an intermittent or reduced-leave basis, how do we determine the amount of leave being used?

A: Only the amount of leave actually taken may be counted if an employee takes leave on an intermittent or reduced-leave schedule.

For example, if an employee who normally works five days per week takes off one day from time to time on an intermittent basis, the employee would use one-fifth of a week of FMLA leave each time. If a full-time employee who normally works eight-hour days begins working four-hour days under a reduced-leave schedule, the employee would use one-half of a week of FMLA leave each week.

If an employee normally works a part-time schedule and is eligible for FMLA leave, the new schedule should be compared to the old schedule and the leave figured on a proportional basis.

For example, if an employee who normally works 30 hours per week works 20 hours per week on a reduced-leave schedule, the employee’s 10 hours of leave would constitute one-third of a week of FMLA leave.

According to U.S. Department of Labor regulations, if an employee’s usual schedule varies from week to week, an employer should calculate the employee’s “normal” workweek using a weekly average of the hours worked over the 12 weeks prior to the beginning of the leave period.

Q: One of our employees has asked for FMLA leave having to do with his ill girlfriend. He said that they live together. Is he entitled to a leave under the FMLA?

A: The FMLA entitles an employee to time off to care for a spouse, and limits the definition of the term to a husband or wife as legally defined or recognized in the state where the employee resides; domestic partners are not specifically mentioned in this definition.

This means that if an employee lives in a state that recognizes common-law marriage, the term “spouse” will include common-law husbands and wives. Connecticut doesn’t recognize common-law marriages, so your employee is not entitled to FMLA leave to care for a live-in girlfriend.

Q: Can workers’ compensation leave also count as leave under FMLA? If so, can we require an employee receiving workers’ comp benefits to return to light-duty work if he is also on FMLA leave?

A: If a job-related injury or illness satisfies the FMLA’s definition of “serious health condition,” then the time on workers’ compensation can be counted toward the employee’s FMLA 12-week entitlement. An employee who is out for three weeks on workers’ comp, for example, would have nine weeks left of FMLA leave, assuming the employee’s injury or illness is a “serious health condition.”

An employee who is on workers’ comp leave as well as FMLA leave may be offered light-duty work but cannot be required to accept it. If the employee declines the light-duty assignment, however, he may no longer be entitled to workers’ comp benefits. He will, however, continue to be protected under FMLA until he returns to his former job or a similar one or his FMLA leave runs out.

Q: We’re covered by the FMLA. The wife of one of our employees just had a baby. I know the employee would be entitled to take 12 full weeks off to bond with the baby, but he wants to take the time as “reduced” leave, perhaps using one or two days each week. Are we required to let him have this schedule?

A: No, the FMLA does not require it. Reduced leave is leave that reduces the number of hours an employee works daily or weekly. Employers are required to offer this type of leave when it is needed for a reason involving a serious health condition (the employee’s or a family member’s).

Otherwise, reduced leave may be taken only if the employer agrees to it. Intermittent leave, which is leave taken periodically in separate blocks of time, is subject to the same rules as reduced leave.

Unless the employee’s wife or child has a serious health condition, he is not entitled to reduced or intermittent leave. You may permit him to take it if you wish.

Q: We’re covered by the state and federal family leave acts, and in the past our pregnant employees have used family and medical leave to cover their pregnancy leave. A new employee is pregnant but hasn’t worked enough hours to qualify for family leave. Is she eligible for pregnancy leave under the state’s fair employment practices law?

A: Yes. That law requires employers with three or more employees to give pregnant employees a “reasonable” leave of absence for pregnancy-related disability.

The length of an employee’s leave depends on her particular medical necessity; however, barring complications, a typical leave is usually between six and eight weeks. The leave can be unpaid, and there is no requirement, as there is under the federal family leave law, that employers continue paying their share of the group health premium.

The fair employment practices law also requires that the returning employee be reinstated to her original job or an equivalent one.

An employee who has already used up her family leave for other purposes, such as to care for a sick child or spouse, would also be eligible for pregnancy leave under the fair employment practices law.

Q: When an employee on our group health plan takes leave under the FMLA, may we put that employee on COBRA?

A: An employer must maintain group health coverage for an employee (and covered spouse and dependents) during an FMLA leave as if the employee were not on leave. The leave is not a qualifying event giving rise to COBRA coverage. However, an employee (and covered spouse/dependents) may become eligible to elect COBRA coverage if:

  • the employee does not return to work after the last day of FMLA leave;
  • the employee was covered under the group health plan on the day before FMLA leave began; and
  • the employee (or spouse/dependents) would, in the absence of COBRA coverage, lose coverage under the group health plan before the end of the maximum coverage period.

However, an employee (or spouse or dependent) will not be eligible to elect COBRA coverage if, on or before the employee’s last day of FMLA leave, the employer eliminates group health plan coverage for the class of employees to which the employee would have belonged if he or she had not taken leave.

Q: I’ve learned that one of my employees who is out on FMLA leave has been working for another company while on leave. Can he do that?

A: It depends on whether you have a policy that prohibits employees from working elsewhere while on leave. According to the U.S. Department of Labor’s “FMLA Compliance Guide,” employers with established policies regarding outside employment while on paid or unpaid leave may uniformly apply those policies to employees on FMLA leave. Otherwise, you may not restrict the employee’s activities.

FMLA protections, though, will not apply if the reason for the leave no longer exists, or the employee has misrepresented the reason for leave or hasn’t provided required notices or certifications.

Q: We know the federal FMLA requires us to treat employees out on FMLA leave the same as active employees for purposes of group health coverage. We’ve always done this, with the employee on leave continuing to pay his or her portion of the premium and the company paying its share of the premium. An employee who is going to be out on leave to care for an ill family member has asked if she can opt out of group health coverage during the leave. Is that okay?

A: Yes, it is. An employee may choose to discontinue group health coverage during FMLA leave, as long as the decision is truly voluntary.

When she returns from leave, your employee must be reinstated to group coverage just as if leave had not been taken and the insurance had not been dropped during that time.

She does not have to meet any qualification requirements imposed by the plan, such as waiting a certain period of time or passing a physical exam, before coverage is reinstated.

Ask the employee to put her request in writing, and, as with most FMLA-related matters, be sure that she understands her rights and that the arrangement is documented.