Maintenance of Benefits - Under Multi-Employer Health Plans

A multi-employer health plan is a plan to which more than one employer is required to contribute, and which is maintained pursuant to one or more collective bargaining agreements between employee organization(s) and the employers. An employer under a multi-employer plan must continue to make contributions on behalf of an employee using FMLA leave as though the employee had not taken leave (unless the plan contains an explicit FMLA provision for maintaining coverage, such as through pooled contributions by all employers party to the plan).

An employee using FMLA leave cannot be required to use "banked" hours or pay a greater premium than if he or she had not taken leave. During the duration of an employee's FMLA leave, coverage by the group health plan, and benefits provided pursuant to the plan, must be maintained at the level of coverage and benefits applicable to the employee at the time the leave began.

Group health plan coverage must be maintained for an employee on FMLA leave until:

• The employee's FMLA leave entitlement is exhausted;
• The employer can show that the employee would have been laid off and the employment relationship terminated; or
• The employee provides unequivocal notice of intent not to return to work.

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For more information on this aspect of the FMLA, see the FMLA regulations: § 825.211