Much has been written about the Bermuda Triangle of Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), and Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), but that’s not the only triangle that makes FMLA compliance tricky. Compliance gets even murkier when the ramifications of the Pregnancy Discrimination Act (PDA), ADA, and COBRA are factored in.
FMLA regulations specify that the FMLA does not override other applicable laws, and that where multiple laws apply to a leave situation, FMLA should be coordinated with the other applicable laws. Understanding which laws apply in a given situation, and how they interact, can be complex and confusing, to say the least. Here’s a rundown, courtesy of BLR’s Family and Medical Leave Act Compliance Guide.
The Pregnancy Discrimination Act and FMLA
The PDA, which amends Title VII of the Civil Rights Act of 1964, makes it unlawful to fire, fail to hire, refuse to promote, or otherwise discriminate against a woman because she is pregnant.
The basic principle behind the PDA is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work.
As regards FMLA leave, this means:
- A pregnant woman may not be forced to go on leave as long as she can still work.
- If other employees who take disability leave are entitled to get their jobs back, so are women who have been unable to work because of pregnancy.
- If pregnant employees are treated differently with respect to their FMLA leave than nonpregnant employees who request leave because of a serious health condition, you may be guilty of discrimination.
- If a woman is terminated allegedly because of pregnancy or the birth of a child, she may be able to sue under both FMLA and PDA.
Please keep in mind that some states have laws that mandate maternity leave.
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COBRA and FMLA
COBRA contains rules regarding employees’ rights to healthcare coverage.
The major question for employers who must comply with both COBRA and FMLA is when COBRA benefits begin. According to guidance issued by the Internal Revenue Service (IRS Notice 94-103), taking leave under the FMLA does not constitute a COBRA-qualifying event setting off COBRA’s notification requirements. A qualifying event does occur if the following conditions are met:
- The employee (or spouse or dependent) is covered by the employer’s group health plan on the day before the first day of FMLA leave,
- The employee does not return to work at the end of the FMLA leave, and
- The employee would, in the absence of COBRA, lose coverage under the health plan before the end of the maximum coverage period provided by COBRA.
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If these three conditions are met, a qualifying event occurs on the last day of FMLA leave. The maximum COBRA coverage period is generally measured from the date of this qualifying event. If coverage would be lost on a later date, the maximum COBRA coverage period would be measured from that date.
The IRS guidance also says that:
- Any state and local laws that require group health plan coverage during a leave of absence for more time than required by FMLA do not affect the determination of when a COBRA qualifying event has occurred.
- A qualifying event also occurs if an employee fails to pay his or her share of group health plan premiums during the FMLA leave or declines group health plan coverage during the leave.
- The right to take COBRA continuation may not be conditioned on repayment by an ex-employee of any premiums paid by the employer for group health coverage during FMLA leave.
In tomorrow’s Advisor, we’ll take a look at another Bermuda Triangle—FMLA, the Employee Retirement Income Security Act (ERISA), and the Fair Labor Standards Act (FLSA)—and we’ll get a look at an FMLA compliance program that will keep your FMLA hassles to a minimum.
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