QUESTION: We have an employee taking military caregiver leave to care for a spouse who is an injured veteran. Do we have to continue the employee’s health insurance during this period of medical leave?
ANSWER: The Family and Medical Leave Act (FMLA) generally requires covered employers to allow an employee who is 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 single 12-month period to care for the servicemember. The leave entitlement is applied on a per-servicemember, per-injury basis, so an eligible employee may take more than one period of 26 workweeks of leave if the leave is to care for different covered servicemembers or to care for the same servicemember 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 covered 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. When the employee returns from FMLA leave, the employer must restore the employee’s group health coverage (if the employee allowed it to lapse), as well as other benefits.
A covered servicemember generally is a member of the Armed Forces who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is on the temporary disability retired list for a serious injury or illness. But covered servicemembers can also be covered veterans who are undergoing medical treatment, recuperation, or therapy, for a serious injury or illness, if they were members of the Armed Forces and 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.
Special FMLA rules apply for caregivers of a covered veteran. For instance, the term “serious injury or illness” in the case of a veteran generally means a qualifying injury or illness that was either incurred in the line of duty on active duty in the Armed Forces, or 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—(1) a continuation of a serious injury or illness that was incurred or aggravated when the covered veteran was a member of the Armed Forces and rendered the servicemember unable to perform his or her duties; (2) a physical or mental condition for which the covered veteran has received a Veterans Affairs Service-Related Disability Rating (VASRD) of 50% or greater; (3) a physical or mental condition that substantially impairs the covered veteran’s ability to secure or follow a substantially gainful occupation; or (4) an injury, including a psychological injury, on the basis of which the covered veteran has been enrolled in the Veterans Affairs Program of Comprehensive Assistance for Family Caregivers.
The rules for military caregiver leave involve multiple layers of complexity under the FMLA. Some exceptions apply, such as the FMLA small employer exception for certain employers with fewer than 50 employees. But other laws, such as the Americans with Disabilities Act, may also apply. You should proceed with caution in handling leave requests of any type.
For more information, see EBIA’s Group Health Plan Mandates manual at Sections XVII.A (“What Is the FMLA and Who Must Comply”) and XVII.C (“Maintenance of Group Health Plan Benefits”). See also EBIA’s Self-Insured Health Plans manual at Section XIV.H.1 (“FMLA: Family and Medical Leave”).
Contributing Editors: EBIA Staff.