Yesterday’s Advisor clarified rules governing benefits during FMLA leave; today, recouping payments when an employee doesn’t return from leave, plus an introduction to the “FMLA Bible.”

When an employee fails to return from FMLA leave, for at least 30 calendar days, the employer may demand payment of its share of the health premiums paid during the leave. However, that may not be easy, and it may not be sensible.

Most state wage and hour laws do not permit an employer to collect such monies by withholding final paychecks and/or vacation pay. If the employee doesn’t voountarily pay, an employer must proceed to court and sue the employee to recover its share of premium payments.

Unfortunately, a favorable court ruling will likely cost the employer more than it will recoup.

Furthermore, an employer is not entitled to recover its share of premium payments if the employee fails to return to work because of:


  • The continuation, recurrence, or onset of a serious health condition of the employee or the employee’s family member that would entitle the employee to leave under the FMLA.
  • Other circumstances beyond the employee’s control including, but not limited to, caring for a relative, such as a newborn infant or an individual (other than a covered relation) who has a serious health condition, or relocating because a spouse is transferred to a location more than 75 miles from the employee’s work site. Electing to remain home to care for children is not a circumstance beyond the employee’s control.

When an employee fails to return to work because of the continuation, recurrence, or onset of a serious health condition, thereby precluding the employer from recovering its share of health benefit premium payments made on the employee’s behalf during a period of unpaid FMLA leave, the employer may require medical certification of the employee’s or the family member’s serious health condition. Such certification is not required unless requested by the employer.

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The employee is required to provide medical certification in a timely manner or within 30 days from the date of the employer’s request. If the employer requests medical certification and the employee does not provide it in a timely manner, or the reason for not returning to work does not meet the test of other circumstances beyond the employee’s control, the employer may recover 100 percent of the health benefit premiums it paid during the period of unpaid FMLA leave.

If the employer chooses to maintain other benefits (e.g., life insurance, disability insurance) by paying the employee’s co-payment during FMLA leave, the employer is entitled to recover only the employee’s share of the premiums for these benefits.

Furthermore, if paid leave is substituted for unpaid FMLA leave, the employer may not recover its share of health insurance or other nonhealth benefit premiums.

FMLA hassles—they just won't go away, will they? And, now, of course, there are all the new FMLA responsibilities—like military leave and reinstatement.  Shell-shocked?

It's an almost overwhelming task to keep up with FMLA, let alone get in compliance with the far-reaching changes. You're going to need a helping hand. Good news! BLR's editors have gone into overdrive to get your comprehensive compliance guide ready.

BLR's recently updated Family and Medical Leave Act Compliance Guide simplifies the frustrating and confusing complexities of the Family and Medical Leave Act (FMLA), so you know exactly how to comply in every situation.

It contains practical answers to all the FMLA questions you are asking—and the ones you haven't thought of but should be asking.

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The Family and Medical Leave Act Compliance Guide includes:

  • Leave law overview
  • All the new forms and advice on how to use them
  • Practical guidance on implementing all aspects of the new rules
  • Analysis of federal and state laws, what they require, and how they interact
  • Leave circumstances, coverage, and eligibility—for FMLA, ADA, workers' comp, and military leave
  • Recordkeeping and reporting requirements
  • Reasonable accommodation
  • Sample policies and forms

Plus

  • A quarterly newsletter and updates, to make sure you stay in compliance as any changes come about

Get more information or order your copy of the Family and Medical Leave Act Compliance Guide.