Human Resource Blog

FMLA

If an employee does not qualify for FMLA can we terminate their employment for missing work even though they are out because of an illness? Also when an employee does qualify for FMLA we can not cancel their insurance, correct? How does the insurance get paid by the employee if they aren’t receiving a paycheck?

You are correct that you can terminate an employee for excessive absenteeism in many circumstances. This is true, even if the employee is ill, as long as the illness is not covered by FMLA or ADA. Be cautious here, though. Many physical or mental problems are serious health conditions under FMLA, including asthma, migraines, alcoholism, drug addiction, depression, OCD, etc. Sometimes granting additional unpaid time off is a reasonable accommodation under ADA, the Americans with Disabilities Act. Again, ADA covers many conditions including migraines, arthritis, diabetes, depression, etc.

You are also correct that the employer must continue group health insurance coverage for an employee on FMLA, on the same basis as while the employee was employed. This means that the employee is still required to pay his or her portion of the premium. Most employers require that the employee send a check or money order directly to the employer each month (or every pay period) for this premium payment. Most employers also err on the side of caution, and do not cancel the insurance coverage if the payment is a few days late.

Some states may require that the employer continue insurance coverage during FMLA, and permit the employee to pay it back once he or she returns to work. This is normally done by charging the employee for 2 insurance premiums rather than one each payday, until the employee is caught up. Some employers always use this method, even if they are not legally obligated to.