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Providing health insurance to employees taking military caregiver leave

An employer may occasionally receive a request for military caregiver leave. One question you may have under such circumstances is whether you must provide health insurance to the employee while on leave.

Leave entitlement

The Family and Medical Leave Act (FMLA) generally requires an employer to allow an employee who’s the spouse, son, daughter, parent or next of kin of a “covered servicemember” with a serious injury or illness to take up to 26 workweeks of job-protected “military caregiver leave” during a 12-month period.

The leave entitlement is applied on a per-servicemember, per-injury basis. So, an eligible employee may take more than one period of leave if the leave is to care for different servicemembers or for the same servicemember but with a subsequent serious injury or illness. Regardless, no more than 26 workweeks of leave may be taken within any single 12-month period.

The employer must maintain group health plan benefits for an employee on this type of FMLA leave on the same terms and conditions as if the employee had continued to work. If the employee allows coverage to lapse while on leave, the employer must restore the employee’s coverage when he or she returns.

Covered servicemembers

A covered servicemember generally is a member of the Armed Forces who is:

  • Undergoing medical treatment, recuperation or therapy,
  • In outpatient status for other reasons, or
  • On the temporary disability retired list for a serious injury or illness.

Covered servicemembers can also include veterans who were discharged or released under conditions other than dishonorable at any time during the five years preceding the date on which the employee takes the military caregiver leave under the FMLA. But special FMLA rules apply. For instance, the term “serious injury or illness” in the case of a veteran generally means a qualifying injury or illness that either: 1) was incurred in the line of duty on active duty in the Armed Forces, or 2) existed before active duty and was aggravated by service in the line of duty.

The injury or illness may have manifested itself before or after the member became a veteran and must be:

  • A continuation of a serious injury or illness that was incurred or aggravated when the veteran was a member of the Armed Forces and left him or her unable to perform his or her duties,
  • A physical or mental condition for which the veteran has received a Veterans Affairs Service-Related Disability Rating of 50% or greater,
  • A physical or mental condition that substantially impairs the veteran’s ability to secure or follow a substantially gainful occupation, or
  • An injury, including a psychological injury, that has caused the veteran to be enrolled in the Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.

Possible exceptions

There may be some exceptions to these rules, such as the FMLA exception for certain employers with fewer than 50 employees. But other laws, such as the Americans with Disabilities Act, may also apply. We can provide further information.

© 2019

Laura L. Stover, SHRM-SCP, SPHR, lstover@sek.com

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