Termination of benefits

Leslie · March 2002

I have just started to oversee the HR for an entity of our company that's been without. They have an individual who has been out of work with an industrial injury for a year and a half. We are notifying him that he is going to be placed on FML and has 12 weeks to return. During the year and a half, the company has been paying his health insurance premium. I am notifying him that the premiums are his responsibility, effective immediately, and he has 30 days to send payment. If not his medical benefits will term 05/01, and he would be eligible for COBRA (qualifying event being reduction in hours). Can I do this when he is on FML?

Terry · March 2002

[font size="1" color="#FF0000"]LAST EDITED ON 03-26-02 AT 04:10PM (CST)[/font][p]Do you have a written policy addressing this? What has been the practice for other employees who have been out in FMLA? While an employee is out on FMLA, you need to continue their medical as if they were still at work, meaning if he paid a portion of the premium, then the employee can only be asked to contribute that portion. If you always paid the full premium, then you need to continue until the end of FMLA.

Margaret Morford · March 2002

When you say "industrial accident," does that mean he's a Worker Compensation injury for your company. If that's the case, you probably ought to get some legal advice about whether you are setting yourself up for a WC retailation charge or not. Again, this will depend on your company policies and past practices in handling other WC injuries. You don't want to be fine on the FMLA, but get sued over the WC.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Leslie · March 2002

Yes, he's on workman's comp. The problem is they have another gentleman who is basically in the same situation, just hasn't been out as long, and he's been paying his medical premium. Our P&P, which is in the process of being approved for the other entity, states that when someone is out on FML, whether work related or not, they are responsible for making any and all insurance premiums. I'm trying to make the situation consistent with the two men. Upon end of 12 weeks, we will term if they are unable to return to work.

Theresa Gegen TX · March 2002

Are you sure you want to give him the FMLA. It seems that under the federal law, he would not qualify (he has not worked 1250 hrs in the last 12 months), and the new US Supreme Court case says that an employer can retroactively designate the FMLA leave. If you don't do the FMLA, you could give him a shorter period (for example 10 days to get a release, or whatever would be consistant with your company policy).

Good Luck

Good Luck.

Leslie · March 2002

You're right, neither of them qualify, because neither has worked the number of hours required in the past year. I was under the impression I couldn't simply say something like, "Hey, you guys have been off since such and such a date, and essentially the only time you qualified for the FMLA was when you first went out so your 12 weeks are done, and now you need to be back to work in 10 days." While I'm giving them 12 weeks in their letters, I just figured - as both are on Workman's Comp and have been - to give them every benefit and by June we'll either have two more workers or we can finally cut our losses. This entity's P&Ps are essentially non-existent in addressing these issues, so I'm treading very carefully until ours get approved for them and can get handbooks together. Boy, I opened quite a can of worms here when all I was talking about was making the one pay his medical insurance premium!

Don D · March 2002

It's my understanding that the Supreme Court has just in the past several weeks made a ruling, favorable to employers, that even though the company failed to advise the employee when his FMLA started that he was in fact on FMLA, the employer could in fact advise him or her NOW, after the fact, that he or she is or was then on FMLA and the court's logic was their belief that the FMLA did not by any stretch intend that an employee wind up with more than 12 weeks of FMLA during the defined period, even if not timely advised by the employer. Am I anywhere near correct on this?

Theresa Gegen TX · March 2002

You are pretty much right.

Leslie · June 2002

The end date for FMLA for both these guys is 06/17. Now one has doctor's notification that he is ready to return to work. Figures. Problem is it's been a year (original date of injury was 06/11/01), and not only is his former job not available it doesn't even exist as that plant was shut down. We are looking to offer him a job as a salesman for our product, where he will at least, through commissions, have the possibility of making the same amount of money as he did as a plant foreman. Frankly would prefer to tell him his services aren't needed. Comp will subsidize either a lower income or no income. Can we do this?

Don D · June 2002

[font size="1" color="#FF0000"]LAST EDITED ON 06-12-02 AT 02:18PM (CST)[/font][p]Leslie: I read back through the history of this posting. It looks like you did decide to place the guy on FMLA way after the 12 weeks was past following the beginning date of absence. If you advised him that he is in an FMLA period set to expire on the date you now state, that's reality. There are conditions under which an employee on FMLA DOES NOT have to be returned to work. There are sections in the law that address jobs that have been restructured while the employee was on FMLA. There is also mention of jobs that were abolished and for which equivalent jobs do not exist. An employer might be able to show that an employee would not otherwise have been employed at the time reinstatement is requested, for example one who would have been laid off anyway, or one whose job would have been eliminated anyway or plant closed and would not have otherwise had a right to transfer. You should contact an employment attorney with FMLA specific knowledge to research this before you head off in one way or another. You may also not be at liberty to "decide to offer him a sales job" if it can be shown that the job is not equivalent in terms of duties, conditions, responsibility, status and pay. Be careful! You might not have the flexibility you suggest, OR YOU MAY HAVE MORE.

tfevergrn · June 2002

Don D is correct in his statement of the recent case involving FMLA. But although this case was in favor of the employer, it is not suggested that you not designate FMLA in a timely manner. This I would obtain legal counsel on.

As far as making an employee pay their insurance premium while on worker's compensation, when the employer typically pays 100%, I specifically asked this question at the last M. Lee Smith seminar. I was told by the specific attorney covering this topic that as long as an individual was still employed by your company as an employee on worker's compensation, employers are to continue paying their portion of the insurance premium. In this case 100%

Leslie · June 2002

I did initially consult with an attorney who stated I should put them both on the 12 week leave to give them every benefit so they would have little recourse should they be unable to return on the given date. I believe I mentioned earlier that these guys were both Work Comp cases - one has been released to return with a 5 to 8 percent disability. That leaves us worried placing him in a physical job such as a plant lead (he was foreman before, but as I said that job has been eliminated). So if we counter with the salesman job, I think we're okay. The cut in pay is going to be there no matter what.

Termination of benefits

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