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Group Health Coverage for Individual Out on ADA Leave


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If an individual has exhausted FMLA leave but remains out on an unpaid leave of absence as a reasonable accommodation under the ADA, is the individual legally entitled to continued coverage under the employer's group health plan?

I know that under the FMLA an employee is entitled to continued group health plan coverage for the FMLA period under the FMLA / COBRA rules. I have not found clear guidance, however, whether a similar legal requirement exists for those out on leave as a reasonable accommodation under the ADA. I see discussions suggesting that once FMLA has been exhausted, the right to guaranteed or protected health coverage generally ends suggesting that ADA leave is not necessarily protected. There are, however, other references to EEOC guidance that say health coverage should continue to be provided during ADA leave if the employer normally provides continued health coverage in other similar leave situations. In this case the employer does not have other similar leaves or generally provide continued health plan coverage but it's unclear to me whether the EEOC thinks the ADA requires continued plan coverage or not.

I understand that group health plans might provide for continued coverage for individuals out on ADA leave or on STD or LTD following exhaustion of FMLA but our question is whether there is a strict legal obligation / requirement for providing such coverage beyond the FMLA (rather than merely whether an employer might negotiate and arrange for such continued coverage as a policy matter).

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Not that I have found. I do agree that if the employer has set a precedent of continuing benefits for someone out on a non-ADA leave, that they would need to do so for an ADA (or even extended non -FMLA protected non-ADA) leave. But in the end, the purpose of ADA was to accommodate so the employee could work with reasonable accommodation. While the EEOC guidance wants to greatly expand the benefits, in the end the law of protecting benefits rests in FMLA's 12 weeks and then any state protected leave programs.

If a person is defined as disabled under ADA, I would suspect that 99.9% of the time their timeoff would fall under FMLA (although there are some situations that I can't think of right now that might not).

I haven't found a strict legal obligation as long as you are consistently moving employees onto COBRA when they run out of FMLA-protected benefits. Unfortunately sometimes executives want to make a special deal for one or two and don't realize that they open up a precedent-setting policy that could later get them into trouble.

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  • 4 weeks later...

Somewhat related question.  In looking at this in connection with new group health plan certificates / booklets, the general insurer discussion seems very confusing / lacking.  In many spots, it is suggested that an individual will no longer be eligible for group insurance when no longer actively employed  (or actively at work or some similar term) which might seem to suggest that coverage would end following mandated FMLA leave if the individual remained out on ADA reasonable accommodation leave for some period.  However, in other spots the certificates suggest coverage may continue (seemingly perhaps for some limited but undefined period) depending on the leave policies of the employer, etc.

I'm mainly looking at description in an insured group health policy but in looking at a few of these for comparison as well as at some other welfare plans the descriptions seem all over the place and anything but precise.  In essence they seem to want to provide for some flexibility consistent with the employer's policies; however, the employer's policies really don't address and are afraid to do so because they want to provide whatever maximum benefits the insurance policies may permit.  Seems to me kind of like a big game of chicken where neither side wants to really set precise limits.  Am I off base on how I'm reading / interpreting these sorts of provisions?  Thanks.

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Actually I think you are reading it fairly...neither want to be boxed in nor does the employer want to run afoul of laws like FMLA/ADA and state-level versions of the same.  But in the end the employer also has to make sure they are being consistent with whatever policy they choose and to make sure their policy falls correctly on what their plan/insurer's document states.

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Thanks.  This gets a bit maddening.  Had someone at the insurer suggest they "don't really police these sorts of provisions" but then admit that coverage cannot continue indefinitely so I asked "Does that mean 1 month, 3 months, or more like 9 months?  Can the employer just set their policy at some definite leave period and continue coverage for at least that long so long as the employer is consistent?"  Response was that it was probably more like three months max but it's not really written down anywhere by the insurer.  How is an employer supposed to draft a policy that correctly tracks the insurer's documents when those are so vague almost to the point of ignoring the issue.

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Being cynical....I think they only police/audit it if a person makes a very large claim and it hits the insurance company's bottom line.  

But that being said, they leave themselves wiggle room to put the blame back onto the employer.  So as an employer, I would not do an indefinite coverage for someone on leave except by at some point possibly moving them to COBRA and paying some or all of those premiums (but that might be taxable and it's been a while since I've reviewed those tax consequences). Each employer needs to see what they feel comfortable with and be consistent in their administration -- especially when it gets back to after FMLA and ADA issues.

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Thanks.  Agree with you that this is unlikely to come up except in big ticket cases; however, when dealing with individuals out on post-FMLA / extended ADA reasonable accommodation leave it seems we probably have a pretty good chance of running into those situations.  It's also likely not difficult to tell based on the claims who is likely to be absent from work or being covered under some extended leave arrangement if the insurer looks.

While we usually have limited cases of post-FMLA / ADA leave and those we do have are usually pretty brief, the current situation involves a case where the employee's Dr. provided a return to work date that is 8 months out.  So while we don't have an indefinite period, we do have a pretty long leave period in this case.  The individual is not active, cannot work, etc. but has not been terminated and is being provided this leave as a reasonable accommodation leave under our policy.

Employer here just wants to do the right thing and is willing to pay premiums for leave period (whether as regular coverage or whether as supplement to COBRA coverage) but does not want to be at risk of self-insuring the benefits if the insurer challenges anything.  Employer would ideally like to establish an extended leave policy that provides coverage up to maximum period insurer permits if applicable to a particular situation but if the insurer won't say what that is and we provide coverage for 8 months (hoping the max might be 9 months) but the insurer later surfaces and says the max should be 6 months (or less) then this seems to put the employer in a dangerous spot.  Not to mention that there are conflicting statements on the insurer's website about extended leave coverage given what is found in the booklet (all of the statements rather vague though).  It just shouldn't be this difficult to figure out what the contract / insurer permits.

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Ouch! From an HR standpoint I wouldn't have recommended extending the leave and benefits coverage 8 months -- I would have argued undue hardship and it not being a reasonable accommodation under ADA especially if the employee cannot work at all and it is not an intermittent leave.  Because there is now a rather large precedent set for how long is NOT undue hardship to the employer.  

I would have said 8 months was too long and at most given about 3 personally.  I think that could be argued as a reasonable return time since 3 months is what is federally protected and the employer has doubled that.

But the employer I work for is very black/white and conservative on decisions.

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Thanks. I hear you.  Have been working closely with employment counsel on this and there are some unique facts.  This individual is basically a floater with minimal skills in a large office--i.e., the employer can basically easily hire a routine clerical temp to cover most of their job functions so they felt difficult to make an undue hardship claim here.  Plus it is a sad and tragic story so there is desire to be as "accommodating" as possible in this case.  No doubt we are beyond the usual period here but the fact that there is no clear max set by the insurer is a danger to employers at lesser leaves--for example, what if it was for 3 1/2 months or 4 months so not really much beyond the 3 months.  Based on the EEOC rulings, we have been advised to carefully consider each situation on its facts and engage in a detailed analysis of what is an appropriate reasonable accommodation  

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I concur that this is a maddening situation.

Just keep in mind,

accommodation that is not reasonable is not required,

the purpose of accommodation is to facilitate employees' ability to do their primary job functions (accommodation is not required to help the employee not work),

and, as hr for me said, you will be setting a policy for future cases.

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Thanks.  Understood.  For better or worse the reasonableness piece was not my call.  But to be honest I'd have something of the same issue if it was 3 months or 4 months instead of 8.  While that is admittedly likely a bit extreme, the ability to know for sure how long the insurer would permit is a real concern--especially if the EEOC and others continue to push employers on the reasonable accommodation piece.  In this particular case, the accommodation was not really a concern for the employer except for the handling of benefits. (Agree with you on setting a precedent--lawyer has indicated that we should be able to fairly easily distinguish from other lengthy cases creating undue hardship.) 

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