medical benefits while on W/C

Pork

Here is a new one on me: I always thought that in our working world, while on a W/C disability claim that, we, "the employer" was required to maintain all benefits on their behalf! Our Corporate Headquarters in another state is looking to place all W/C short term disability employees on COBRA, STARTING THE 91st DAY of Worker's Comp. Concurrently, we, as a corporate body, do not run W/C concurrent with FMLA. My initial position was, wait a minute, I do not belive we can do that in this state. I contacted our state W/C staff attorney, his response was sorry Pork, but our state has no provision in the law which requires any benefit to be continued by the fact some one is out of the work place, on physician's orders. He cautioned, however, one should be concerned for the protection of employees under FMLA, EEOC, ADA, for adverse action toward the employee as being retailatory for getting hurt and claiming W/C.

Corporate reasoning toward changing our procedures is "cost savings from those that abuse both the FMLA and W/C". We are self insured for both W/C and personal medical coverage. The burden of paying premium expense while out on W/C is currently the company, which drives up the overall cost, which is then used to calculate the total expense of coverage for the next premium year. We have several employees out right now for wellover the 90 days, and the company pays the price of the personal medical coverage. Our COBRA premium for the family coverage is $800.00+ per month. If we go to this, then I can see some folks getting well real quick or we will be faced with litigation beyond belief.

Any thoughts from my friends on this issue! Have any other members in our state any experience in this arena which I shouldor could use to argue for or against this action?

Peyton Irby MS

your w/c attorney had the right idea. however, many, probably most, employers do use FMLA concurrent with workers comp leave which means you pay health coverage for 12 weeks, but COBRA kicks in thereafter. given the corporate directives, you do not appear to have many options.

LindaS

Health insurance for employees must be maintained while wmployees are on FMLA as long as the employee pays what would normally be their portion of the premium. My understanding of the FMLA law is that coverage CAN be discontinued for the employee if they do not continue making their premium payments the same as they would if they were working.

My recommendation would be to run your worker's comp. and FMLA concurrently, provide the employee with the necessary paperwork and, upon approval of the leave request, provide them with the information regarding what their responsibilities are regarding their health insurance premiums.

SMace

My understanding is when you run FMLA and WC together the ee gets the better of both worlds. Meanining if one says COBRA and the other says company pays, company pays.

Theresa Gegen TX

Yes, but the FMLA will run out after 12 weeks. Then the employee will be on straight worker's comp, which in many states does not require continuation of benefits. If the company does not run them concurrently, and puts the employee on worker's comp and cuts of the medical benefits, the employee arguably could say that it is an FMLA violation (he has a right to FMLA and all the benefits of FMLA - including the continued health coverage for 12 weeks).

The best practice is to run the FMLA and worker's comp concurrently.

Good Luck!

SMace

I agree, Theresa. However, we continue to count all leave (except military) after 12 weeks as FMLA. It keeps the clock running which has its advantages for both the ee and company. We generally allow more than 12 weeks if it is the same condition that originally took them out. We have a 12 month limit. If someone uses their 12 weeks (or more) and needs more time before the rolling year expires that is a different story.

Balloonman

I have run into this before with WC. I sit them down and present them with a letter letting them know that they are responsible for paying their regular portion of the premium while out on WC. I have had the last two fall behind, one due to wife getting laid off. As an employer you look pretty heartless cutting off their benefits while they are on WC so I have taken the approach of letting them catch up once they return to work.
I am 1 for 2! I ended up firing one for violating our drug policy prior to returning to work, and he owed us $1,100 for premiums. Filed suit last week as he had signed paperwork stating he would repay.
In the future, when I inform employees that will be out about the insurance responsibility, I will let them know that if they fall 30 days behind in paying their portion, they will be placed on COBRA. I am not going to get screwed again.
My $0.02 worth. I may have to look at how I do it as I was planning on designating the WC leaves as FMLA.
DJ The Balloonman

SMace

Baloonman, they would still have to pay their portion of the premiums while on WC or FMLA or both.

WT

You need to be consistent. To stay out of trouble with WC, look at how other employees are treated if out on a non-work related disability. If employees out with a work related disability are treated more harshly, you are looking for trouble. You can run FMLA leave concurrently with WC leave unless prohibited by your state. You must give 12 weeks of health care coverage (FMLA). After that, you can require employees to pay COBRA premiums but make sure you do the same for those out on a non-work related illness or injury. Of course, WC benefits will continue to pay for the work related injury regardless of the time limit. Insurance benefits would apply only to services not related to the work related injury.

Pork

THANKS TO ALL WHO POSTED; I STILL DO NOT HAVE AN ANSWER from our corporate HQs. I too feel we need to run both, concurrently; only to stop the know abusers from raising the cost of employee medical benefits. If we can stop the abusers, it would be a good thing for all employees. At $800.00 + it would be reasonable to assume the abuser would not select COBRA. We can only hope then that W/C injury does not cause serious injury, hurt, pain, and suffering beyond 12 weeks. The W/C abuser would always continue to get medical coverage and short term disability, but could not jump to the FMLA and expect disability pay and medical coverage for another 12 weeks at the company's expense. Again thanks every one, your postings reassure me we should do both at the same time! Pork

Eliant

Pork,
it sounds like no matter what we say to you it's ultimately your corporate office who is deciding. If your company wants to stay out of trouble all employees out on leave od absence need to be treated the same, or you run into biased discrimination. However, I'm in CA and I dot all my i's and cross all my t's, to prevent additional litigation. This is what I have done in the past and continue to do so and it works.
We run W/C concurrent with FMLA,(we approve extended leave to our employees on straight FMLA/CFRA/PDL if need be and certified by a physician a total of 150 business days)while this is going on employees are to pay their share of the premium. This is allowed for the duration of the FMLA or extended leave period. If they fail to comply one month they are advised that if we do not receive their past due premium with in 7 working days they will be placed on COBRA. (of course if they can't pay their share of the cost, they won't be able to pay the COBRA either) As a business we can only be so flexible. (The only thing we do differently is that if the W/C case is litigated we do not cut any slack) we run FMLA along with W/C, once FMLA time is over we give them the COBRA notice. Otherwise we work with the employee.
I have had instances were I have been able to recouperate Insurance premiums through the settlement agreement on litigaed W/C cases.

So far I have never had any problems.

Good Luck...

Eliant
Long Beach, CA