1. FMLA and Health Insurance
Risks and Things to Consider
Brice Christensen
Client Advisor, Employee Benefits
Abbey Vanderwerf
Vice President, Employee Benefits
04/24/2019

2. Independent Facilities and Providers Avera Facilities and Providers
Sanford Facilities and Providers

3. Agenda Importance FMLA Basics Identifying Your 12 Month Period
FMLA and the ACA
Where to Begin

4. Why is this important to me?

5. Employee and Employer Protections
12 weeks of protected leave
Including health insurance
Employer
Limit liability
Termination of employment
Termination of health insurance

6. What’s the worst that can happen?1.
Employer has no policy/process for administering FMLA 2.
Employee is out for extended period of time for serious medical condition 3.
Health plan denies claims after COBRA should have been exhausted 4.
Employee is terminated from health plan 5.
Employee sues for not being offered COBRA coverage 6.
Employer self-funds cost of claims for 18 month COBRA period

7. FMLA Basics

8. FMLA Basics
Requires Covered Employers to provide Eligible Employees up to 12 weeks of unpaid, job-protected leave per year
Leave must be for reasons required by law (Covered Reasons)
Employers and employees have specific rights and remedies under the FMLA
The FMLA provides specific rules for group health benefits coverage
Employers must generally restore employees to their position or equivalent position upon return from FMLA leave

9. Covered Reasons
Birth of a child and to take care of newborn, including prenatal care and bonding time
Placement of a child for adoption or foster care
To care for an immediate family member with a serious health condition
Employee’s own serious health condition
Qualifying exigent circumstances (a covered service member has been notified of an impending call to active duty)
To care for a covered service member's serious injury or illness (a/k/a “military caregiver leave”)

10. Serious Health Condition
Illness, injury, impairment, or physical or mental condition;
Requires inpatient care or continuing treatment by a health care provider; and
Involves more than three days of incapacity.
Burden is on the employer to determine if condition is FMLA qualified.

11. Intermittent Leave
Employers have to allow intermittent or reduced schedule leave under certain circumstances
Medical need for such leave
Qualifying exigencies (military leave)
Not required for birth or adoptions, but employer may agree to it
Example: Leave for newborn well-care appointments are not FMLA-protected but could be allowed by employer.

12. Concurrent Leaves
Recommend leave policy to require using paid leave while on FMLA leave.
Accrued leaves (Sick, Vaction, etc.)
Disability/Workers Compensation
If a leave is eligible for FMLA, it is always advisable to treat it as FMLA leave.

13. Identifying Your FMLA Leave Year

14. FMLA Leave Year Calendar Year Any Fixed 12 Months
The Department of Labor allows employers choice for an FMLA Leave Year.
Calendar Year
Any Fixed 12 Months
The 12 month period measured forward
A “rolling” 12 month period measured backward

15. FMLA Leave Year Calendar Year Any Fixed 12 Month Period
Allows for leave stacking
January 1 to December 31
Any Fixed 12 Month Period
Employer determines (fiscal year or employee date of hire)
Rolling Forward
Does not allow for leave stacking
12-month period set at the first day of leave rolling forward
Rolling Backward
12-month period rolling backward from leave date

16. FMLA Leave Year Different Leave Year, Different Results
Employee requests leave in two years
Calendar Year – Both leave requests are granted
First leave: – (8 weeks)
Second leave: – (12 weeks)
The leave year must uniformly and consistently applied to all employees, unless the employer is multi-state and an applicable state law requires a specific method be used for a leave year. An employer must describe the leave year in their FMLA policies. An employer can change how they are calculating leave years with 60 days notice but can’t use the change to be less generous to employees.

17. FMLA Leave Year Different Leave Year, Different Results
Employee requests leave in two years
Rolling Forward – Only 4 weeks of 2nd leave qualifies as FMLA
First leave: – (8 weeks)
Second leave: – (12 weeks)
September 2018
September 2019
First Leave Request
8 Weeks
Second Leave Request
12 Weeks
9/1
11/1
3/1
6/1
9/1
3/1
First leave – 8 weeks used - Approved
Second Leave – Look at 9/1/2018 – 9/1/2019 (8 weeks used) – Approved for only 4 more weeks (remaining time in leave year)

18. FMLA Leave Year Different Leave Year, Different Results
Employee requests leave in two years
Rolling Backward – Only 4 weeks of 2nd leave qualifies as FMLA
First leave: – (8 weeks)
Second leave: – (12 weeks)
First Leave – 9/1/2017 – 9/1/2018 – no leave time used - Approved
Second Leave – 3/1/2018 – 3/1/2019 (8 weeks already used) – Approved for only 4 more weeks (remaining time in leave year)

19. FMLA and the ACA

20. FMLA and the ACA When should we term from health insurance?
ACA protected stability period
Does employee “measure” as full time?
Monthly or Look-Back?

21. FMLA and the ACA Determining FTE Status Monthly Measurement Method
When concurrent with paid leave, an employee earns hours of service for FTE determinations
Unpaid FMLA leave does not count as hour of service for FTE determination
Look-back Measurement Method
If an employee is on FMLA leave during a stability period for which he was full-time, coverage continues
Determine FTE at next Admin Period

22. ACA Periods Select length of stability period
Clearly define measurement method
Look-Back, Monthly
Select length of measurement period
Between 3 and 12 months
Select length of stability period
Between 6 and 12 months
Select length of administrative period
Between 1 and 3 months

23. FMLA and the ACA

24. Where To Begin

25. Policy Basics
Define Covered Reason
Identify FMLA Leave Year
Run paid leaves concurrently with FMLA
Obligation to maintain health benefits stops after FMLA
Concurrent leaves: Enforce use of sick or vacation leave alongside allotted FMLA leave

26. Other things to consider
Medical certification process
Allows employer to know if condition qualifies
Designation notice
How to let employee know if leave qualifies
Notice of changes
60 day notice for change to Leave Year