AEI determination

[Guest kg78]

Company has a maximum leave policy in place for employee's out on leave, whether it's medical or personal. If an employee choose not to return from leave, is that voluntary or involuntary for COBRA ARRA subsidy purposes? For example, female goes out on maternity leave & chooses to stay home after she has the baby, but does not actually resign. That appears to be voluntary.

However, what happens to the employee who has exhausted all available leaves, but is medically unable to return to work? Our company policy says they are separated from employment if they don't return once all leaves are exhausted, and we let them stay out for a very generous period past what is legally required before reaching this point. Also, who determines medically able at this point since the employee has been separated & we aren't really inthe position to request medical records anymore?

This is a blurry line and I wondered if anyone else has run into these types of situations & how you responded. We've already had one employee file an appeal, and while I don't want to get into a lawsuit over COBRA, I also dont' want to set a precedent that could cost us much more in the future.

[Mary C]

We regard it as voluntary and have stated such on appeals that have come from the DOL without a challenge.

[oriecat]

The IRS Notice says:

Q-4. Does involuntary termination include an employer’s action to end an

individual’s employment while the individual is absent from work due to illness or

disability?

A-4. Yes. Involuntary termination occurs when the employer takes action to

end the individual’s employment status (but mere absence from work due to illness or

disability before the employer has taken action to end the individual’s employment

status is not an involuntary termination).

To me, that says that it is involuntary if you change someone's status while they are off due to medical reasons.

[oriecat]

This discussion deals with a similar issue and might be useful to you.

http://benefitslink.com/boards/index.php?s...c=41867&hl=