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FMLA and COBRA: How Do They Interact?

February 21, 2003
Santa Rosa, CA
The Family and Medical Leave Act of 1993 (FMLA) imposes on certain employers the obligation to maintain health coverage under group plans during an employee's FMLA leave. In certain circumstances, employers must provide COBRA continuation coverage to employees who took FMLA leave. Many employers have questions regarding how the two federal laws work together. In this COBRA Tip, we will address some of those questions.

What are the basic provisions of the Family and Medical Leave Act?
1. The Family and Medical Leave Act of 1993 (FMLA) entitles eligible employees to take up to 12 weeks of unpaid, job-protected leave in a 12-month period for specified family and medical reasons such as the birth of a child, care of an ill family member, or illness of the employee.

2. Covered employers are required to maintain group health insurance coverage for an employee on FMLA leave if such insurance was provided before the leave was taken. Coverage must be on the same terms as if the employee had continued to work.

3. Upon returning to work from FMLA leave, employees must be restored to their original job, or to an equivalent job with equivalent pay, benefits and other terms of employment.

4. FMLA leave cannot result in the loss of any employment benefit that was earned, or that the employee was entitled to, before taking FMLA leave including the right to COBRA continuation coverage if the employee on leave fails to return to work.

Which employers must provide federal FMLA leave?
FMLA applies to all public agencies, including state, local and federal employers and certain local school districts. It also applies to private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year, including joint employers and successors of covered employers.

Which employees are entitled to take federal FMLA leave?
To be eligible for FMLA leave, an employee must work for a covered employer and:

1. have worked for that employer for at least 12 months; and

2. have worked at least 1,250 hours during the 12 months prior to the start of the FMLA leave;and

3. work at a location where at least 50 employees are employed at the location or within 75 miles of the location.

Is taking a leave of absence under FMLA a COBRA qualifying event?
No. Although normally a reduction in a covered employee's work hours will trigger the right to receive COBRA continuation coverage, under Internal Revenue Service regulations taking time off under FMLA does not constitute a qualifying event for COBRA purposes.

IRS Final Regulations-Interaction of FMLA and COBRA, Section 54.4980B-10 Federal Register Vol. 66, No. 7 January 10, 2001

When does an employee on FMLA leave become eligible for COBRA?
1. Generally, when an employee fails to return to work at the end of an FMLA leave, group coverage ends and the COBRA qualifying event occurs on the last day of the FMLA leave period.

2. If the employee on FMLA leave notifies the employer prior to the expiration of the 12-week FMLA period that he won't be returning to work, group coverage ends and the COBRA qualifying event occurs on the date of that notification.

3. If an employer's health plan voluntarily extends coverage beyond those COBRA qualifying event dates, COBRA coverage does not begin until group health coverage is actually lost.

Note: If an employer eliminates group health coverage for all similarly situated active employees on or before the end of an employee's FMLA leave, no COBRA qualifying event can occur.

How is the COBRA maximum coverage period measured?
The COBRA maximum coverage period is measured from the date of the qualifying event, which is the last day of the FMLA leave or the date on which the employer is notified that the employee will not return to work. However, if coverage under the employer's group health plan is lost at a later date and the plan provides for an extension of the required periods, then the maximum coverage period is measured from the date when coverage is lost under the plan.

Does an employee's failure to pay group health plan premiums while on FMLA leave affect COBRA rights?
No. COBRA rights are not affected if an employee fails to pay the employee portion of premiums for coverage under a group health plan during FMLA leave. Any lapse of coverage under a group health plan during FMLA leave is irrelevant in determining whether circumstances constitute a COBRA event, according to the Internal Revenue Service. And if the employer paid the employee's health plan premiums during the leave period, COBRA coverage may not be conditioned on reimbursement of those premiums.

Note: Loss of coverage due to nonpayment of premiums during FMLA leave is not a COBRA qualifying event and is disregarded for COBRA purposes.

How do state and local family leave laws affect COBRA rights?
Some states and local governments have laws that provide more generous medical leave benefits than those required under federal FMLA. If both laws apply to a particular employer, employees are not required to designate whether they are taking federal FMLA leave or leave under state laws, according to the Department of Labor. Employers that are subject to both federal and state laws must comply with the federal or state provision that provides the greater benefit to their employees. But note that final IRS regulations provide that any state or local law that requires coverage under a group health plan to be maintained during a leave of absence for a period longer than the 12-week FMLA period does not affect the determination of when a COBRA qualifying event has occurred. For example, Connecticut provides 16 weeks of family and medical leave in a 24-month period, but the 12-week federal period is used to determine when COBRA must be offered.

IRS Final Regulations-Interaction of FMLA and COBRA, Section 54.4980B-10 Federal Register Vol. 66, No. 7 January 10, 2001

What notice requirements must be satisfied?
When a COBRA qualifying event under FMLA leave has occurred, the employer must notify the plan administrator of the event within 30 days of the last day of FMLA leave. But if the plan provides for an extension of the coverage period, then the applicable notice period begins on the date coverage is lost.

The complete text of the federal Family and Medical Leave Act.

The Department of Labor detailed summary of the Family and Medical Leave Act
This information is provided by OnQue Technologies, Inc. for educational purposes only and does not constitute legal advice. If legal advice or other professional assistance is required, the services of a competent professional should be sought.
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