How do we get out of paying for employer insurance during FMLA?
April 30, 2012 12:10 PM   Subscribe

FMLA-Filter: What counts as officially "returned" to work after the 12 week FMLA for maternity leave?

This is a question for my wife. She is about to go on maternity leave through her employer. She works full time and is entitled to FMLA. She will continue to have unpaid leave but maintain health insurance through her employer. My wife also plans on eventually quitting her job. Now from what I understand is; according to FMLA, the employer has the right to collect it's paid premiums on the insurance it has maintained for the employee during the leave if the employee fails to return from work. This is defined in section 104, C.

This would amount close to $1000 out of pocket by the end of her leave if she would quit at the end. She said she would be willing to work say a week back in the office after FMLA to qualify as "returned" to work as to not have to pay the employer portion of the premium on the incurred insurance she used during maternity leave. My question, how long does one have to return to work to qualify not having to pay insurance premiums while on FMLA? I read her documents from her employer and the linked FMLA atricle but could not find a definition of what counts as "returned", thinking that a week back in the office after maternity would count as not having to pay back the insurance premiums. Has anyone have experience with this? Baby is due in about a week!
posted by amazingstill to Law & Government (9 answers total) 1 user marked this as a favorite
As far as I understand, employers get to make their own rules regarding how long you have to come back for before you no longer have to pay back your benefits given during FMLA.
posted by ThePinkSuperhero at 12:20 PM on April 30, 2012

What are you, your wife, and your baby planning on doing for insurance after she leaves her job? Would it just make more sense to switch to that now?

posted by mskyle at 12:50 PM on April 30, 2012 [1 favorite]

Code of Federal Regulations to the rescue!

I think what you're looking for is found in 29 C.F.R. § 825.213, subsection (c), which reads:
(c) An employee who returns to work for at least 30 calendar days is considered to have “returned” to work. An employee who transfers directly from taking FMLA leave to retirement, or who retires during the first 30 days after the employee returns to work, is deemed to have returned to work.
So your plan for her to return for a week doesn't seem like it would work. The regulation says she has to be back for at least a month to count as "returned".
posted by valkyryn at 12:50 PM on April 30, 2012 [2 favorites]

But really, talk to HR.
posted by valkyryn at 12:54 PM on April 30, 2012 [1 favorite]

Valkyryn is right, but I wouldn't necessarily talk to HR, either, because an employer's obligation to maintain health benefits under FMLA stops as soon as the employee informs the employer of an intent not to return to work at the end of the leave period. So, if the conversation goes that way (indicating she doesn't want to return) and she's not willing to work the 30 days, the employer can decide not to cover her. HR is generally looking out for the employer's interests.

I'm not saying lie, I just wouldn't go in there and lay out your plan, because plans change and she may end up wanting to work that month.
posted by Pax at 1:15 PM on April 30, 2012 [1 favorite]

While that's true, it's illegal to punish an employee for attempting to exercise their rights under the Act. So going in and asking how this is going to work can't be used as an excuse for cutting you off.
posted by valkyryn at 1:47 PM on April 30, 2012

Does she know for a fact that her company actually does this? I administered FMLA for a large company for several years. Even though the company was entitled to recover premiums from people who chose not to return to work, they didn't do so. The notices that we were required to provide employees with explained that the FMLA gave the company this right, but we explicitly stated (in our own, company-specific literature) that it wouldn't be done.

I don't think a conversation with HR would be amiss. It's extremely common for expectant mothers to ask a lot of "what if" questions: what if I go early; what if there are complications; what if I'm not ready to return to work; etc. I got those questions all the time and never batted an eyelash. Now, that's not to say that your wife won't be directly asked whether or not she plans on returning to work. If she is, she shouldn't under any circumstances tell them she's not returning. That's not lying; she hasn't even had the baby yet - who knows what will happen by the end of her leave?

(There are exceptions to the payback requirement, but they're fairly narrow. If your wife had another FMLA-qualifying need for leave, she wouldn't owe the premiums back. E.g., if you became ill, or she developed a health condition, that may qualify. If something happened that was outside of her control and prevented her from returning, that might qualify, too. For example, if you got transferred and you both had to move, or if the baby had a health issue that required her to stay home. As it is, unless her employer explicitly states they don't follow that policy, I'd count on either paying the premiums or working a month and then quitting. I only bring these exceptions up in case something major changes during her leave.)

Good luck, and congratulations!
posted by pecanpies at 5:02 PM on April 30, 2012 [1 favorite]

I absolutely would not talk to HR (paid unethical sharks who are out to protect the company, not the employee, in every case). I would suggest simply fulfilling the legal requirements and resigning. I hate and distrust HR, with ample reason. I think it would be better for you to not also gather personal reasons to hate them as well. It will cost you tons of money.

Whether or not it is illegal to punish an employee for leaving, why raise it at all? Simply fulfill the minimum requirements, and leave them with no legal recourse.
posted by Invoke at 6:40 PM on April 30, 2012

I absolutely would not talk to HR (paid unethical sharks who are out to protect the company, not the employee, in every case).

Sorry you had a bad experience, but this is bad advice.
posted by valkyryn at 4:09 AM on May 1, 2012 [3 favorites]

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