Employee resigning upon return from maternity leave

Evswife

We have an employee who took the allotted 12 weeks of maternity leave and upon returning to work, she has given her two weeks resignation. She has been covered under our insurance this entire time, including the newborn. Can we require her to pay back her benefits? When she left for maternity leave, she took all of her personal items home and left all of her security badges on her desk. Any suggestions?

Rockie

I believe the law states if the employee does not return from leave, they can be required to pay back the premiums.

This appears to be a classic case of "working the system". Employee knew this to be the case, so she simply came back to work and resigned.

You are probably stuck with this one unless someone knows a loophole I don't.

marc

Rockie is probably right, but it might be fun to fight this one.

Going with the preponderance of evidence - she cleaned out her desk beforehand and immediately upon returning to work, she gave notice - you might have enough firm ground to stand on and go after the premiums you paid.

But is it enough dollars to fight for? If she had to also pay private counsel, perhaps, but since she might get represented for free by the feds, it might not be worth it.

LivindonSouth

If I'm not mistaken, FMLA requires that you maintain, in force, the health insurance the employee had prior to going out on FMLA. And that the employer can recover the employee portion of the premiums paid on their behalf, while out. FMLA does not require you to pay for their insurance, only keep it in effect. Withhold the employee portion of past premiums from her last check and 'enjoy that battle' as Mark suggested you might by engaging her. The only way you will recover it is to hold it out of her check. Then see what you're up against.

deniseE

What would you do if the ee was out for say, heart surgery, and did not return after the 12 week period???

Half HR

Good point DeniseE. She also may have cleaned out her personal items from her desk because she needed to have them at home during her leave.

Geno

"Can we require her to pay back her benefits?"

Yes, under certain circumstances. But before you implement such a policy, think about all of the ramifications (good and bad & now and in the future) of doing so.

That said, Section 825.213 of the federal regulations reads in part that the employer may recover its share of health plan premiums during a period of unpaid FMLA leave from an employee if the employee fails to return to work (remember that term) after the employee’s FMLA leave entitlement has been exhausted or expires unless the reason the employee does not return is due to: (a) the continuation, recurrence, or onset of a serious health condition the, or (b) circumstances beyond the employee’s control.

Specific to your question is sub-section (3)(c) which reads as follows: "An employee who returns to work for a least 30 calendar days is considered to have “returned” to work."

Before you begin the process of recovering the employer’s cost, just make sure that the new mother is not choosing to stay home to care for a newborn with a serious health condition – which is considered to be beyond the employee’s control.


Geno, SPHR

jmcaa

Excellent answer Gene! Our attorney advised us of the same. Employee has to return to work for at least 30 days to be considered as "returned to work."