COBRA letter not sent

M2

I have an employee that has been out on WC since 4/29/99 and is on LTD. He is still on our insurance and making monthly employee contributions. We don't have a WC disability leave policy and I need to find a way to get him off our insurance. Our medical leave policy allows 90 days. He was never sent a COBRA letter, but we have allowed him to stay on the insurance for 3 years at a reduced rate. Because he was at a location that did not have more than 50 employees in a 75 miles he is not really entitled to FMLA so the fact that he was never officially put on FMLA should not matter. Could I terminate his coverage and say that we have more than compensated him for the COBRA by not making him pay full premiums? I want to be careful about this since he has an attorney for the WC issues.

Theresa Gegen TX

My gut feeling tells me that the safer course would be to offer him COBRA now --but you should really spend the money to check with an attorney who is well versed in COBRA. There are some exceptions to eligibilty, for example if the employee gets social security disability (I believe). So you may be covered.

The downside to not following COBRA strictly could be a large liability -- where you (the employer) becomes liable for his medical bills.

Good Luck!!

CuriousG

M2-I too face this situation. My recommendation is to "make haste slowly." I would quickly review this situation with competent legal counsel. In particular chose someone who is familiar with BOTH the relevant state's Worker's Comp system and Fair Employment Practices/EEO law. You speak of COBRA and FMLA, but don't forget this person could have a claim under ADA if they end up with a permanent disability and alledge you fired them because of the disability. If you are a federal contractor then you may also have an Affirmative Action plan for Handicapped/Disabled individuals that restricts you actions.

We were right at the point of terminating our employee and offering COBRA last November. I decided I should double check with my regular Employment Law attorney. (The insurance company had retained and attorney to represent us in the WC matter.) This was the best hesitation move I ever made.

My E-Law attorney advised us to double check with our WC insurnce carrier to be sure I was dealing with the most current information on the employee's condition. Of course when I contacted the claims rep I found out I was not in possession of the latest medical status. While waiting for the updated information my regular E-Law attorney send out a notice about a recent change in our Okalahoma WC laws that made what I was about to do illegal.

Point being, don't assume anything. Check out all the bases and especially look into your state's WC laws and regulations about when your can terminate an employee who has an active WC claim.