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Employers are often surprised to find options exist for employers to recover premiums paid on behalf of an employee on Family and Medical Leave Act (FMLA) leave.  The following are circumstances where employers could (at their option) seek reimbursement from an employee:

  • If payments were made by the employer for the employee’s share of the premium while on FMLA, the employer may recover payments made on behalf of the employee.

  • If the employee fails to “return to work” upon the expiration of her FMLA leave, unless any of these situations exist –

  • The reason the employee cannot return is because of the continuation, recurrence, or onset of a serious health condition for the employee or her family member or of a covered service member, otherwise covered by the FMLA;

  • Other circumstances beyond the employee’s control, such as a spouse’s unexpected transfer to a job more than 75 miles away, and the employee being laid off or denied the restoration of her job. “Other circumstances” is ill-defined in the regulations, so be aware of arguments employees might make along these lines. They do not include, however, a parent’s decision to stay home with her child or to stay with a parent who does not suffer a serious health condition.

“Returning to work” means the employee returned to work for at least 30 days. If the employee quits within the first 30 days of returning it is not sufficiently returning to work. Employees who retire, however, are deemed to have “returned to work.”

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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