COBRA-FMLA Involuntary or Voluntary

Credit Union HR

An EE exhausted her 12 weeks of FML and was hoping to be able to return but was not released by her doctor and there was no definite time when that would happen. We terminated her employment and classified it as "involuntary" because we were unable to continue holding the job position open. Our TPA that administers our COBRA said it is voluntary because it was a medical reason. I have researched this with no success. Have any of you experienced this situation? Thank you.

ACU Frank

Welcome Credit Union HR!

I have a very similar situation coming up next week. As I understand it, we are allowed to treat a "failure to return from leave" as a voluntary termination for ARRA purposes.

If that is not the case, someone here will correct us... There are a lot of very sharp pros here!

Credit Union HR

I had a very similar circumstance in September 2009 and it was treated as involuntary under ARRA and the termed employee's COBRA is subsidized. So I'm somewhat confused.

ACU Frank

Well, I have all next week to figure it out.

NaeNae55

My understanding is that not returning from FMLA is a voluntary termination UNLESS the employee cannot come back for their own health reasons. In that case, the employer has the right to extend leave or to terminate. If they terminate, the employee did not voluntarily terminate. Since whether they have a job or not is up to you, then it is not voluntary. Make sense?

This is a good topic. Let's hear from some others. Does anyone have anything on this from the DOL or other authoritative source?

ACU Frank

I can see why I'm on the wrong track, Nae... the last time it came up, it was a maternity issue. She was medically okay to come back to work, but wanted to stay home with the baby. In CU HR's case, it sounds like the employee is NOT medically okay to come back.

bkailiuli

Hi everyone! It has been a long time since I've been here. FINALLY year end is done and I can somewhat breathe.

I would treat this situation as an involuntary term. The employee can't come back since the doctor has not released her. If she was able to come back to work and has decided to stay home for a longer period, then it would be involuntary. Just my 2 cents.

bkailiuli

I see my name here is now bkailiuli instead of Bethk. What the heck?

ACU Frank

You only have two posts, as well. It looks to me as if you've been reincarnated .

joannie

Hey Beth, welcome back.

NaeNae55

Looks to me like you've been visiting Hawaii or one of the Pacific islands.

bkailiuli

I wish I was there. My husband has a lot of family still there. I liove hearing about his childhood and how they lived back then. Didn't even have to wear shoes to school. He and his buddies lived a life of surfing and playing until he went in the service. I love to remind him that when he was born Hawaii was still a 'territory'.

plynnl

My father also grew up in Hawaii and did not have to wear shoes to school. They would ditch school and go spear fishing for sharks. Apparently my grandmother was not aware of this.

Credit Union HR

I had an indepth conversation with our TPA/COBRA administrator regarding voluntary vs. involuntary and ARRA. The final agreement was "involuntary" and ARRA eligible because of the same reason Nae and Beth presented. We terminated the employee because we couldn't hold the position any longer and the employee was unable to get a dr release as they deemed her medically unable to return to work with no timeframe given. Good luck, Frank.

ACU Frank

[quote=Credit Union HR;718914] Good luck, Frank.[/quote]

I am awaiting further direction from counsel. And those of you who have known me for these past few years also know how much I hate awaiting further direction from counsel.