Continued Healthcare Coverage and the Intersection with Other Laws
This summary is devoted to a review of DOL’s regulatory guidance on the ways in which the FFCRA intersects with other federal laws, notably the FMLA.
With all the sudden changes the FFCRA has created with respect to internal leave policies and leave laws, the requirements for continued health coverage under the FFCRA do not provide a sea change to the requirements employers covered by the FMLA are already accustomed to observing – if you aren’t currently covered by the FMLA, these requirements may cause a bit of heartburn. Specifically, Section 826.110, sets forth as follows:
- An employee that takes expanded family and medical leave or paid sick leave is entitled to continued coverage under the employer’s group health plans on the same terms as if he or she was working (e.g., if an employee has elected family coverage, the family coverage must be maintained during the leave period);
- The requirement of continued coverage also applies to other similar benefit coverage such as medical care, surgical care, hospital care, dental care, eye care, mental health counseling, substance abuse treatment, etc., if provided by the employer’s group health plan, including a supplement to a group health plan (i.e., the employee elected to not only participate in healthcare coverage, but also the employer’s vision and dental plan);
- An employee that is on leave must be given notice of and is entitled to participate in an employer’s new health plan or changes to current benefits plans to the same extent the employee would have been had the employee not been on leave – the employee would also be subject to any changes in coverage, premiums or deductibles;
- An employee is required to continue paying his or her share of the health plan premiums in the same manner in which the employee made such payments while working (i.e., if an employee has his or her share of the premium withheld as a payroll deduction, the employer must continue to withhold the premium in that manner). If the employee is on unpaid leave or the employee’s pay is insufficient to cover his or her share of the premium, the employee must still pay his or her portion of the premium based on the employer’s terms or policies or as agreed to by the employer and employee;
- An employee may forgo coverage under the employer’s group health plan while on leave; however, the employee is entitled to immediate reinstatement of his or her prior coverage upon return;
- An employer’s responsibility to continue coverage ceases if and when the employment relationship would have terminated had the employee not taken leave (e.g., employee does not return to work, employer closes business, etc.); and
- An employee with an individual health insurance policy is responsible for maintaining the policy while on leave.
The FFCRA suddenly created paid leave for employees that otherwise did not exist prior to its enactment. This has inevitably created conflict between existing laws and internal employment policies. As such, Section 826.160 addresses those issues as follows:
- An employee’s right to leave under the FFCRA is in addition to any other leave rights he or she had prior to the enactment of the FFCRA – put differently, the leave provided under the FFCRA does not diminish any other leave the employee was entitled to under the law, a collective bargaining agreement or employer’s policy.
- An employee’s use of leave related to COVID-19 does not preclude him or her from using leave provided for under the FFCRA, unless the employee has previously exhausted his or her FMLA leave, which would preclude him or her from taking leave under the expanded family medical leave, but not the paid sick leave;
- An employee is not entitled to retroactive reimbursement or financial compensation under the FFCRA for leave taken prior to April 1, 2020, even if the leave was related to COVID-19;
- An employer is not required to compensate or reimburse an employee for any unused leave under the FFCRA upon the employee’s termination, resignation, retirement or any other separation of employment; and
- An employer is not required to compensate or reimburse an employee for any unused leave under the FFCRA upon the expiration of the FFCRA on December 31, 2020.
FFCRA Regulations Overview
- Six Qualifying Events for Emergency Paid Sick Leave
- FFCRA Employee Eligibility, Including the “Healthcare Provider” Exemption
- Which Employers the FFCRA Applies to, and How Small Businesses Obtain an Exemption
- FFCRA Employer Notice Requirements
- FFCRA Employee Notice of Need for Leave Requirements
- FFCRA Return to Work Issues, Employee Record-Keeping Obligations and Prohibited Acts
- Calculating the paid benefits owed under the FFCRA
- Intermittent ESL and EFMLA Leave and the Interplay Between EFMLA/ESL and the FMLA
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