November 10, 2014
Authored by: Christy Phanthavong and Chris Rylands
Open enrollment has likely begun at your company, often bringing it with changes to employee health plans. When communicating benefits-related information, it is important to ensure that all employees – including those currently away from the workplace on FMLA leave – receive the same communications and opportunity to select the new or changed coverage.
The FMLA regulations provide that:
If an employer provides a new health plan or benefits or changes health benefits or plans while an employee is on FMLA leave, the employee is entitled to the new or changed plan/benefits to the same extent as if the employee were not on leave. . . . Notice of any opportunity to change plans or benefits must also be given to an employee on FMLA leave.”
Reiterating this requirement, the IRS regulations provide the following guidance concerning the effects of the FMLA on the operation of cafeteria plans:
FMLA requires that an employee on FMLA leave have the right to revoke or change elections (because of events described in § 1.125-4) under the same terms and conditions that apply to employees participating in the cafeteria plan who are not on FMLA leave. Thus, for example, if a group health plan offers an annual open enrollment period to active employees, then, under FMLA, an employee on FMLA leave when the open enrollment is offered must be offered the right to make election changes on the same basis as other employees.
Accordingly, it is important to take steps to ensure that employees on FMLA leave are not forgotten during the open enrollment period. Consider providing benefits information to such employees via a method which requires proof of receipt, e.g., certified mail or overnight mail. Additionally, any delivery of open enrollment materials also needs to comply with applicable DOL and IRS rules regarding delivery of participant disclosures.