(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), 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. 825.300(c).
(e) An employer may not require more of an employee using unpaid
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 FMLA
leave. See Sec. 825.207(e).
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68091, Nov. 17, 2008]
