Two Quick COBRA questions

DeidreFR5

[font size="1" color="#FF0000"]LAST EDITED ON 06-27-05 AT 11:26AM (CST)[/font][br][br]I have an employee who is requesting four to six months out for a hip replacement, starting mid-July. We only offer FMLA so after twelve weeks, she is on her own. (She's planning to go on long term disability for as long as possible). My question, since I know she will not be back after 12 weeks, can I give her her COBRA paperwork now and save the trouble of sending it to her in 12 weeks? Also, with the sixty day election period, do I start it now with the notice or wait until her qualifying event occurs? Thanks for the help.

Whatever

Am I missing something. If the ee is requesting 4 to 6 weeks out, why do you think she won't be back in 12 weeks.

DeidreFR5

No your not - I mistyped, she is going to be out four to six months.

Georgia

Hi Deidre!
I am wondering why this employee needs four to six months off?? Sounds to me like she is pushing the envelope. I had one hip replaced last August and was back to work after five weeks (to be fair, did "half days" for 10 days -- if you could call it half days since once you get here, it's hard to leave). I had my second hip replace this February and was back to work, full-time after six weeks. You might request an explanation for this lengthy four to six months request.
Georgia Tyler
Director of Human Resources
[email]georgia@riograndecu.org[/email]

DeidreFR5

Exactly - we have had other employee's with this surgery and they have been back in reasonable time. Her "requiring" so much time is typical of her.

Gillian3

Everything revolves around "qualifying event" so you should send out the "official" notice at that time. There is nothing wrong with providing information at an earlier date, but the official notice should comply with the regulations.

It probably depends on how much COBRA activity that you have, but many employers use third party administrators to handle COBRA - just to minimize the headaches.

LivindonSouth

You might also let the doctor's certification guide you. The hip replacements we've experienced at our company have kept employees (3) out for TWO months.

DeidreFR5

We had someone with a double hip replacement who was back in less than three months. This employee seems to be planning a very long term recovery - she was even asking about SSI. She's only in her late thirties and needs a kick more than anything else.

Superlative_KC

The 60-day period will be the later of 60 days from the loss of coverage date OR 60 days from your notice.

LivindonSouth

But don't you agree that the notice should never officially and formally be sent absent a qualifying condition?

HCCADC

Yes,I agree that it should go by the qualifying event. Otherwise, you are sending another letter when the event occurs.

Superlative_KC

I sure do agree. I wouldn't send the notice early because I think there's a better chance it will be overlooked/ignored and you may have to turn around and send it again anyway. Since there is no advantage to sending it early -- the original post asked if the 60 days could start with her sending a notice now and the answer to that question is no -- I would wait and send when the QE occurs.

pork1

DEIDREFR5: We would provide the FMLA and Medical Leave policy and procedures information with signature acknowledging the receipt of the Blank forms and the physician's certification. Upon returning the FMLA application and the physician cerification we would approve the FMLA absence. We would calculate the "back to work day" and write the words that express our company policy is to terminate the employment and medical leave benefits on that date. If the individual did not return for whatever reason the termination date will close the FMLA and the COBRA action would be offered at that time. A date certain is important to the individual and the physician. If this person is planning on a long term disability we will not support such an action.

Our medical plan does have an additional 14 weeks that are available for special cases to which the individual must apply and the physician must certify the requirement for additional days. If the individual is not predicted to be back to full gainful employment within the additional 14 weeks the application is disapproved and the original letter and termination date remains as written.

PORK

Beave

Just to clarify DEDREFER5, this "Qualifying Event" will be the date that the insurance ends for this employee. At that point (or preferably just prior to that date), as Superlative_KC stated, the employee will be eligable for COBRA continuation benefits. The 60 day clock starts ticking at the later of the loss of coverage or the date the notice is received. That makes it critical to be timely with your notice.

Twelve weeks in advance is a little early and could be argued in court that the employee wasn't informrd appropriately (Attorneys have argued less issues). Why take that chance. Mark it on a calander, a PDA, Outlook or however you keep track of things. Ask the employee to call you a couple of weeks in advance of the expiration of the insurance as a reminder.

LivindonSouth

You're not eligible 'just prior to the event' Beave.

KDub

[font size="1" color="#FF0000"]LAST EDITED ON 06-29-05 AT 11:17AM (CST)[/font][br][br]ERISA requires you to follow the terms of the plan document. You should check there first and see what it says to do in this situation. If the plan is silent or unclear, you should consider having the plan amended to make it clear as to how you should proceed in such a case. The interaction of COBRA, FMLA, HIPAA, and a reduction in hours due to something like a disability, not to mention state workers' compensation statutes and the ADA, is a common problem. Check with your legal counsel.

This information is provided for informational purposes only and is not offered as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. No person should act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

LivindonSouth

[font size="1" color="#FF0000"]LAST EDITED ON 06-29-05 AT 02:46PM (CST)[/font][br][br]Kdub. Let me be so bold as to welcome you. I don't usually do that because I don't think it's something I have a right to do since the Forum is not mine and I think 'welcome to the Forum' comments are silly. I do want to salute you for posting your profile and clearly not trying to fake us out by pretending to not be an attorney. We wish more would participate from time to time. The problem in the past was that attorneys would have us think they were second year HR specialists seeking advice. Hope you hang around. x:-)

KDub

Thank you for the nice post. I come here mainly to see what kind of questions and problems HR personnel have out there. I write from time to time for one of the state Employment Law Newsletters and like to keep up on what you all are asking. I am mainly an ERISA attorney, so if I see a question like this one I might chime in. Of course, you have to know that most, if not all, of the responses I provide will say something like "don't forget about these issues" and "ask your attorney."



DISCLAIMER: This information is provided for informational purposes only and is not offered as legal advice. This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. No person should act upon this information without seeking professional counsel. Do not send us information until you speak with one of our lawyers and get authorization to send that information to us.

marc

To be eligibile for FML, the EE must intend to return to work.

I am not quite clear with all of the information you provided, if she intends to return. You state after 12 weeks of FML, she is on her own - I wonder if the intent to return must be by the end of the 12 week FML period. If that is the case, then FML may not apply, which would allow earlier termination and trigger all the COBRA requirements at that time.

DeidreFR5

In theory she plans to return - but she knows she has to tell us that. Her mother is on permanent disability and she has always admired the way she can stay home, watch TV all day and get paid for it. (ambition runs in the family). She was looking into SSI before she even informed HR of the surgery. Her doctor stated she will need a minimum of six months to recover from hip replacement. She is an Assistant Branch Manager and needs to be able to be up, down and around the branch - so we are expecting a slooow recovery, in which case we will be replacing her at the end of twelve weeks. I was just hoping to save the time and postage giving her all her paperwork now instead of later.