Multiemployer USERRA Liability

[Guest Mike Pazzo]

I represent multiemployer health and welfare plans and have been searching for an answer to a question concerning §4317(a)(1)©:

In the case of a health plan that is a multiemployer

plan, …,any liability under the plan for employer

contributions and benefits arising under this paragraph

shall be allocated –

(i) by the plan in such manner as the plan

sponsor shall provide; or…

Does this language permit the plan to allocate liability to the participant. For example, instead of the plan absorbing the cost or the last employer being responsible, can liability be placed solely on the participant. If not, can the plan absorb the cost but require any bank or reserve hours to be used up first?

[mal]

The participant in a health and welfare plan is only

entitled to coverage during the first 31 days of military

service. At that point he switches to Tricare and has

the COBRA option. But, my impression from the Act

is that the member has the right to the contributions

for his military time during that 31 day period. We treat

these hours as a plan expense.

However, I don't believe that we could shift the

burden to the participant as the whole purpose

of USERRA is to ensure the activated member is

"made whole" for all contributions to hw and retirement

plans which the "employer" would have otherwise

made.

Let me ask you this....how are your multiemployer

plans funding the DC contributions that must be made?

[Guest Mike Pazzo]

Thank you for the response. The DC contributions are funded by the last employer. The Trustees however want to treat health care contributions differently (due to the cost). The statute allows single employers to charge up to 102% of the premium cost (as in COBRA) to the participant but that is not as clear for multiemployer plans. The employer trustees (taft-hartley plans) do not want the last employer to be responsible for contributions and the plan (which is in a serious financial condition) cannot afford to fund the benefits. Therefore, the plan wants to charge the cost of premium (determined as if it were a COBRA payment) to the participant and allow self pays, first using any reserve or banked money.

[mal]

I misunderstood your original question. Our HW plans

(also multiemployer) do give the employee the option

to continue coverage at his cost, through self payments

or a dollar bank. If he chooses not to exercise this option,

then at day 31, he is given a COBRA notice. (What I was

addressing above is the liability for contributions for days

1-30. The plan makes the "contribution" and continues

his coverage for the first 30 days.)

I believe this is consistent with the Act. It was also the

advice given at the 2002 IFEBP administrators conference.

Also, you say your plan is in financial trouble. Doesn't

that cover nearly every union health plan in the US?

[Guest Mike Pazzo]

I thought I heard that somewhere as well, I just never saw it in writing. Now that you mention it, I participated in an IFEBP seminar and that must be where I heard it.

Also you are correct about all union plans being in financial difficulty. Do not worry however, HIPAA will ease the financial stress.....