Grandparent care, health premiums, educational aid

Q We have an employee seeking time off to care for a grandparent who has a serious health condition. Does FMLA leave cover caregiving for a grandparent?

A The overall intent of the Family and Medical Leave Act (FMLA) was to help employees balance work demands without hindering their ability to attend to personal and family needs.

The FMLA provides eligible employees up to 12 weeks of unpaid leave for the treatment of their own serious medical condition or that of a spouse, parent, son or daughter. The FMLA also provides leave for the birth of a child or the placement of a child for adoption or foster care. Finally, the FMLA provides employees assurance of job protection and reinstatement rights during these often-sensitive and crisis-filled periods.

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Many employees and employers applaud this groundbreaking legislation. Yet many also feel that the FMLA focused solely on the traditional family structure and neglected to factor in the modern-day family, which includes extended family members. One such perceived exclusion is that of the role often assumed by grandparents in the rearing of their grandchildren.

The FMLA defines the term "parent" as the biological parent of an employee or as an individual who stood "in loco parentis" to an employee when the employee was a minor. FMLA regulations further defining "parent" can be found in Section 825.113 of the Department of Labor's FMLA regulations.

The FMLA does not protect a leave of absence to provide care for a grandparent unless the employee can demonstrate that the grandparent stood "in loco parentis"--that is, had the responsibility of providing day-to-day care and financial support for the employee during childhood. The FMLA does not require a legal or biological relationship to establish "in loco parentis."

FMLA regulations do allow states to offer more-generous coverage and broader definitions of family members. For example, the family and medical leave law in Washington, D.C., defines a family member as any blood relative. Hawaii's definition of family members includes grandparents as well as grandparents-in-law. Employers are advised to review their states' FMLA laws.

For a link to comparisons between state FMLA leave coverage and federal FMLA rules, see the online version of this item in the HR Solutions section at www.shrm.org/hrnews.

--GRP

Q If an employee on FMLA leave fails to make timely medical insurance premium payments, what are my options?

A Employees who take unpaid leave under provisions of the Family and Medical Leave Act (FMLA) can continue to receive medical benefits as if they were continuously at work. Employers also have the option of collecting an employee's normal portion of the premium for those benefits during the leave.

During an unpaid leave in which the employee will continue to make payments, the employee must be given a due date for the premiums and a 30-day grace period to make the payments. An employee who has not made a payment on time must be notified in writing by the employer at least 15 days before the grace period ends that the insurance will be canceled if the premium payment is not received by the specified date.

While insurance may be canceled for nonpayment of premiums during leave, such cancellation does not constitute a qualifying event under the Consolidated Omnibus Budget Reconciliation Act (COBRA). Upon return from leave, an employee must be reinstated to the plan as if the person had never left it--without waiting periods or pre-existing exclusions.

An employer who chooses to maintain the employee on the plan instead of canceling coverage for nonpayment of premiums may recover the premiums when the employee returns to work. If the employee decides not to return to work after the FMLA leave, the employer may or may not have recourse to collect premiums from the employee.

Not returning from FMLA leave is a COBRA-qualifying event, and COBRA notification would be sent out at that time.

Section 825.210 of the FMLA regulations details the various arrangements for payment of medical benefits that employers can implement for both paid and unpaid leave situations.

--SL

Q Because of the recent economic upswing, we are considering adding an educational assistance program. What do these programs typically include, and how many employers provide this benefit?

A Many employers offer educational assistance programs to improve both recruitment and retention and to help maintain an educated and skilled workforce. The assistance may be for basic education leading to a high school equivalency diploma, for example, or for undergraduate or graduate courses.

According to the Society for Human Resource Management's 2005 Benefits Survey Report, 67 percent of employers provide assistance for undergraduate education and 64 percent provide graduate-level assistance.

Internal Revenue Service regulations allow for the benefit to be non-taxable up to $5,250 per year.

The Survey of Educational Reimbursement Programs conducted by Hewitt Associates reports that the average educational reimbursement by employers is $1,600 per year. One-third of employers reimburse workers $1,000 or less, and 42 percent reimburse them $2,000 or more per year.

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The procedures for reimbursing educational expenses vary among employers. Some reimburse employees after they have completed a course satisfactorily--that is, with a grade of C or above. Others provide for advance payment of these expenses. Some employers provide half the reimbursement up front and the rest upon satisfactory completion of the course. Some link educational assistance to continued employment and require a refund of advance payments for educational assistance if the employee leaves the company before completing the course.

For additional resources on employer-sponsored educational assistance, including a sample policy on advance payment of expenses and an article on non-taxable programs that an employer can offer, see the online version of this item in the HR Solutions section at www.shrm.org/hrnews.

--DL

GLYNDA R. PARKER, SPHR, SHARI LAU, SPHR, GPHR, AND DLANE LACY, SPHR, ARE INFORMATION SPECIALISTS IN SHRM'S INFORMATION CENTER.

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Online Resources

For additional questions and answers, see the online version of HR Solutions at www.shrm.org/hrnews.

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