a question: I have an employee who has been out of work due to a workers’ compensation injury for six months. What is my obligation to continue to keep this employee on the company’s health insurance plan?

Answer: An employee who is on medical leave due to a work-related injury may or may not be entitled to continue health insurance on the same terms as if the employee continued to work.

If your employee qualifies for leave under the federal Family and Medical Leave Act or the California Family Rights Act, you will designate the first 12 weeks of employee leave based on the work-related injury as FMLA and/or CFRA. Employees who are on FMLA or CFRA leave are entitled to 12 weeks of health insurance benefits under the same terms and conditions as if the employee continued to work. After the FMLA and/or CFRA expires, the employer must engage in the interactive process with the employee to determine whether the additional leave is reasonable accommodation. Under the California Fair Employment and Housing Act, medical disability leave is considered reasonable accommodation as long as the additional leave is likely to enable the employee to return to work, and the leave does not cause undue hardship to the employer. Also, if your injured employee is pregnant, the employee will likely be eligible for up to 4 months of pregnancy disability leave and an additional 3 months of CFRA leave to bond the child. In this case, the company provided the employee’s health insurance benefits can last up to seven months.

After 12 weeks of FMLA/CFRA leave, or up to seven months of combined pregnancy disability leave and CFRA baby bond leave, the health insurance plan document will specify how long the employee’s company will take. You can contact your insurance broker or review the plan document to determine when an employee becomes ineligible for coverage. Many policies state that after three or four months of sick leave, the employee is no longer eligible to participate in the plan as an active employee. At that time, unless the employee is on a Protected Pregnancy Disability or Child Bonding Leave CFRA, the company’s health insurance coverage for the employee will cease, and the employee will be offered continuation of health insurance at the employee’s expense through the CBA. A reduction in an employee’s hours is a qualifying event under COBRA, and a health insurance broker or plan administrator can help you stop covering the employee and provide continued coverage in a timely manner under COBRA.

Employers sometimes believe that employees who are on workers’ compensation leave are entitled to health benefits indefinitely, but this is not the case. Employers also sometimes forget that medical disability leave due to a work-related injury or illness is administered in the same way as other disability leaves, and will function at the same time as FMLA, CFRA, and provided leave as reasonable accommodation under FEHA.

For more information about family leave, medical leave, and pregnancy disability leave, visit https://calcivilrights.ca.gov/family-medical-pregnancy-leave/

Sarah Bowens is an attorney with Fenton & Keller in Monterey. This column is intended to answer questions of general interest and should not be construed as legal advice. Email inquiries to [email protected].

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