Employment Benefit Rights
Authored By: Legal Aid of Northwest Texas - Waxahachie
COBRA (Consolidated Omnibus Budget Reconciliation Act); 29 U.S.C. §§ 1161
This law is designed to allow a person to keep group health care insurance through the employer under certain circumstances. The law does not require the employer to provide a group health care plan for the workers. However, if the employer has more than 20 employees and decides to provide group health care insurance as a fringe benefit of employment, this law may allow you to continue your group health care insurance after you no longer have a job with the employer.
If you are fired from your job for "gross misconduct," there is no right to seek continued group health care coverage. Other events may qualify you and your dependents for continued health care coverage. Job loss without fault, death, divorce and dependent child reaching majority are 4 typical reasons that a person may loose group health care insurance through no fault of their own.
If the employer knows that an event has occurred making someone no longer eligible to participate in the group health care insurance such as job termination or death of an employee, the employer must notify the former employee or their dependents that COBRA coverage is available. If an event happens that the employer is not likely to know such as divorce or dependent child reaching majority, the person losing health care coverage must notify the employer of the event.
The person wishing to continue health care insurance coverage under COBRA has to notify the employer that they wish to continue insurance coverage. They can make this election at any time between the date of the qualifying event and 60 days after they receive notice from the employer that they are eligible for COBRA coverage. The notice from the employer should tell you how much the monthly insurance premium will cost and when and where it should be paid. Health insurance coverage can continue for up to 18 to 36 months as long as you pay the insurance premium. The employer can not be required to pay the insurance premium for you. The employer retains the right to alter or terminate the health care plan that is available to employees.
ERISA (Employee Retirement Income Security Act);
The Family Medical Leave Act; 29 U.S.C. §§ 2611 et. seq.
Under normal circumstances, if you are unable to go to work and perform your assigned job duties, the employer can fire you. This federal law provides for extended leave of absence from work without the loss of your job under certain circumstances. Although you can not be fired for absenteeism, the employer is not required to continue your pay and all benefits while you are out.
The employer must have at least 50 employees. If the employer has several work locations, all workers within 75 miles are counted. You must have been employed for 12 months or worked at least 1260 hours on the job. You must have a newly born or adopted child OR you, your spouse, child or parent must have a serious health problem.
A serious health problem is a mental or physical illness or injury that requires inpatient treatment OR continuing treatment.
If you notify your employer that you have a new child or a serious health problem, you can be absent from work for up to 12 weeks in any 12 month period and still maintain your job rights. The 12 weeks can be used all at once or a little at a time. The employer should tell you that any time taken off from work will count against your FMLA time. The employer can require that you use up all leave or vacation time that you have available. If the employer pays the full group health care insurance premium, they must continue your health care coverage during your absence. If employees are required to contribute to the insurance premium, then you must send in your monthly portion to your employer in order to keep your health care benefits coverage during your absence.
If your job position is eliminated by reorganization during your leave, reinstatement is not required. If you are unable to return to work after the 12 weeks of FMLA leave, the employer is free to fire you.
The employer has the right to require documentation that the medical condition is serious. The employer can require information about when the condition started; the diagnosis, the expected duration, and, if essential job duties are identified, whether the employee is unable to perform any of those duties. The employer has the right to require that the employee produce a certificate from the doctor authorizing return to work IF that requirement is made known to you at the time FMLA leave is requested.