Job restoration rights apply if an employee remains on leave after exhausting family and medical leave (FML) as long as paid leave is used.
Occasionally, an employee on an extended leave has accrued paid leave that extends past 12 weeks of FML. When this happens, the question arises on what type of rights apply when FML ends. This includes payment of the employer’s health insurance premium contribution and job protection.
Health insurance premium
An employer is responsible for paying the regular contribution to an employee’s premiums during paid leave and FML. This is addressed in Policy CRD (LOCAL) for school districts and ESCs and CKD (LOCAL) for colleges using the TASB Policy Service coding system.
If the leave is unpaid and FML does not apply, the employer has no obligation to pay the designated portion of the employee’s premiums. During any period of unpaid leave that is not designated as FML, the employee is responsible for the entire health insurance premium. This includes an absence due to work-related illness or injury during which an employee is receiving workers’ compensation temporary income benefits (TIBs).
At the end of FML, employees are entitled to return to the position held prior to leave, or an equivalent position, and retain all benefits in place before leave was taken (29 CFR § 825.214). An equivalent position is one that is virtually identical to the employee's former position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. Further details to determine if a position is equivalent are addressed in the federal regulations (CFR § 825.215).
For paid leave, there is a common expectation that an employee will return to work at the end of leave, regardless of the of length of absence. As a result, an employee on an extended absence with a high balance of accrued paid leave should be treated the same as an employee who takes a day or more of leave.
In terms of employee morale, it’s important to avoid any practice that discourages excellent attendance. The same standard of a seamless return to a position following paid leave, no matter how long the absence, should apply.
It’s important for staff managing leave to have a good understanding of employer obligations applicable to the various leave benefits. Additional information is available in The Administrator’s Guide to Managing Leaves and Absences and the Leaves section of the HR Library (member login required)
April Mabry is an assistant director at TASB HR Services. Send April an email at email@example.com.
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