[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.209]



[Page 767-768]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

 Subpart B_What Leave Is an Employee Entitled To Take Under the Family 

                         and Medical Leave Act?

 

Sec.  825.209  Is an employee entitled to benefits while using FMLA leave?



    (a) During any FMLA leave, an employer must maintain the employee's 

coverage under any group health plan (as defined in the Internal Revenue 

Code of 1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as coverage 

would have been provided if the employee had been continuously employed 

during the entire leave period. All employers covered by FMLA, including 

public agencies, are subject to the Act's requirements to maintain 

health coverage. The definition of ``group health plan'' is set forth in 

Sec.  825.800. For purposes of FMLA, the term ``group health plan'' 

shall not include an insurance program providing health coverage under 

which employees purchase individual policies from insurers provided 

that:

    (1) no contributions are made by the employer;

    (2) participation in the program is completely voluntary for 

employees;

    (3) the sole functions of the employer with respect to the program 

are, without endorsing the program, to permit the insurer to publicize 

the program to employees, to collect premiums through payroll deductions 

and to remit them to the insurer;

    (4) the employer receives no consideration in the form of cash or 

otherwise in connection with the program, other than reasonable 

compensation, excluding any profit, for administrative services actually 

rendered in connection with payroll deduction; and,

    (5) the premium charged with respect to such coverage does not 

increase in the event the employment relationship terminates.

    (b) The same group health plan benefits provided to an employee 

prior to taking FMLA leave must be maintained during the FMLA leave. For 

example, if family member coverage is



[[Page 768]]



provided to an employee, family member coverage must be maintained 

during the FMLA leave. Similarly, benefit coverage during FMLA leave for 

medical care, surgical care, hospital care, dental care, eye care, 

mental health counseling, substance abuse treatment, etc., must be 

maintained during leave if provided in an employer's group health plan, 

including a supplement to a group health plan, whether or not provided 

through a flexible spending account or other component of a cafeteria 

plan.

    (c) If an employer provides a new health plan or benefits or changes 

health benefits or plans while an employee is on FMLA leave, the 

employee is entitled to the new or changed plan/benefits to the same 

extent as if the employee were not on leave. For example, if an employer 

changes a group health plan so that dental care becomes covered under 

the plan, an employee on FMLA leave must be given the same opportunity 

as other employees to receive (or obtain) the dental care coverage. Any 

other plan changes (e.g., in coverage, premiums, deductibles, etc.) 

which apply to all employees of the workforce would also apply to an 

employee on FMLA leave.

    (d) Notice of any opportunity to change plans or benefits must also 

be given to an employee on FMLA leave. If the group health plan permits 

an employee to change from single to family coverage upon the birth of a 

child or otherwise add new family members, such a change in benefits 

must be made available while an employee is on FMLA leave. If the 

employee requests the changed coverage it must be provided by the 

employer.

    (e) An employee may choose not to retain group health plan coverage 

during FMLA leave. However, when an employee returns from leave, the 

employee is entitled to be reinstated on the same terms as prior to 

taking the leave, including family or dependent coverages, without any 

qualifying period, physical examination, exclusion of pre- existing 

conditions, etc. See Sec.  825.212(c).

    (f) Except as required by the Consolidated Omnibus Budget 

Reconciliation Act of 1986 (COBRA) and for ``key'' employees (as 

discussed below), an employer's obligation to maintain health benefits 

during leave (and to restore the employee to the same or equivalent 

employment) under FMLA ceases if and when the employment relationship 

would have terminated if the employee had not taken FMLA leave (e.g., if 

the employee's position is eliminated as part of a nondiscriminatory 

reduction in force and the employee would not have been transferred to 

another position); an employee informs the employer of his or her intent 

not to return from leave (including before starting the leave if the 

employer is so informed before the leave starts); or the employee fails 

to return from leave or continues on leave after exhausting his or her 

FMLA leave entitlement in the 12-month period.

    (g) If a ``key employee'' (see Sec.  825.218) does not return from 

leave when notified by the employer that substantial or grievous 

economic injury will result from his or her reinstatement, the 

employee's entitlement to group health plan benefits continues unless 

and until the employee advises the employer that the employee does not 

desire restoration to employment at the end of the leave period, or FMLA 

leave entitlement is exhausted, or reinstatement is actually denied.

    (h) An employee's entitlement to benefits other than group health 

benefits during a period of FMLA leave (e.g., holiday pay) is to be 

determined by the employer's established policy for providing such 

benefits when the employee is on other forms of leave (paid or unpaid, 

as appropriate).



[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995]