(a) Group health plan benefits must be maintained on the same basis
as coverage would have been provided if the employee had been
continuously employed during the FMLA leave period. Therefore, any share
of group health plan premiums which had been paid by the employee prior
to FMLA leave must continue to be paid by the employee during the FMLA
leave period. If premiums are raised or lowered, the employee would be
required to pay the new premium rates. Maintenance of health insurance
policies which are not a part of the employer's group health plan, as
described in Sec. 825.209(a)(1), are the sole responsibility of the
employee. The employee and
the insurer should make necessary arrangements for payment of premiums
during periods of unpaid FMLA leave.
(b) If the FMLA leave is substituted paid leave, the employee's
share of premiums must be paid by the method normally used during any
paid leave, presumably as a payroll deduction.
(c) If FMLA leave is unpaid, the employer has a number of options
for obtaining payment from the employee. The employer may require that
payment be made to the employer or to the insurance carrier, but no
additional charge may be added to the employee's premium payment for
administrative expenses. The employer may require employees to pay their
share of premium payments in any of the following ways:
(1) Payment would be due at the same time as it would be made if by
payroll deduction;
(2) Payment would be due on the same schedule as payments are made
under COBRA;
(3) Payment would be prepaid pursuant to a cafeteria plan at the
employee's option;
(4) The employer's existing rules for payment by employees on
``leave without pay'' would be followed, provided that such rules do not
require prepayment (i.e., prior to the commencement of the leave) of the
premiums that will become due during a period of unpaid FMLA leave or
payment of higher premiums than if the employee had continued to work
instead of taking leave; or,
(5) Another system voluntarily agreed to between the employer and
the employee, which may include prepayment of premiums (e.g., through
increased payroll deductions when the need for the FMLA leave is
foreseeable).
(d) The employer must provide the employee with advance written
notice of the terms and conditions under which these payments must be
made. (See Sec. 825.301.)
(e) An employer may not require more of an employee using FMLA leave
than the employer requires of other employees on ``leave without pay.''
(f) An employee who is receiving payments as a result of a workers'
compensation injury must make arrangements with the employer for payment
of group health plan benefits when simultaneously taking unpaid FMLA
leave. See paragraph (c) of this section and Sec. 825.207(d)(2).
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]
