DoL Deputy Administrator Alfred Robinson, Jr. said in opinion letter 2006-3-A that the employer can’t force a worker on FMLA leave to pay more for coverage than the employee would have paid had he or she not taken the leave.
Noting that the requirement to maintain group health plan coverage applied “whether or not [the coverage is] provided through a flexible spending account or other component of a cafeteria plan,” Robinson concluded that employees taking unpaid FMLA leave “must have that portion of their cafeteria plan allotment allocated to group health insurance (including dental) premiums paid by [the employer] in the same amount as paid prior to the start of FMLA leave.”
Not only that, the DoL official said because the employer paid for group health insurance coverage while employees were working, it could not recover such payments from its employees when they returned to work after FMLA leave.
The employer referred to in the letter provided a fixed monthly amount (called an “allotment”) to employees who were participating in its cafeteria plan, which they then used to pay the premiums for group health plan coverage. Employees had the option to apply any remaining balance to the cost of dental, disability, or life insurance coverage or to receive that amount in cash.