FMLA2006-4-A — Whether FMLA leave counts as hours worked for future health insurance eligibility

U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

February 13, 2006 FMLA2006-4-A

Dear
Name*:

This is in response to your letter requesting an advisory opinion under the Family and Medical Leave Act
of 1993 (FMLA), 29 U.S.C. § 2601 et seq. Your letter concerns a client company that is subject to
collective bargaining agreements (CBAs), many of which stipulate that in order for an employee to
maintain group health insurance benefits for the following calendar year, the employee must work a
specified number of hours in the preceding calendar year. You inquire whether FMLA leave taken during
the year must be credited towards qualification for the following year’s group health insurance benefits for
employees subject to these agreements, or whether the employer can lawfully deny these employees’
group health insurance benefits if the required hours are not worked because of FMLA leave. You do not
specify whether the CBAs treat other types of paid or unpaid leave as hours worked.

In the scenario you describe, employees of your client are subject to CBAs that require at least 1500
hours of work in a calendar year in order to maintain group health insurance benefits for the following
year. You ask us to assume that these employees currently have group health insurance benefits and
that those benefits have been maintained for employees taking FMLA-qualifying leave in the current
calendar year. Because of the FMLA leave taken, however, these employees will not work the 1500
hours required under the CBAs to qualify for the following year’s benefits.

The FMLA entitles eligible employees of covered employers to take up to 12 weeks of unpaid, job-
protected leave each year – with continuation of group health insurance coverage under the same
conditions as prior to leave – for specified family and medical reasons. We assume your inquiry relates to
a company that is covered by the Act and to eligible employees taking FMLA leave for a qualifying reason
under the Act. See 29 U.S.C. §§ 2611-2612(a); 29 C.F.R. §§ 825.104-.112, 825.114.

The FMLA requires an employer to maintain coverage under any group health plan (as defined in 26
U.S.C. § 5000(b)(1)) for the duration of the eligible employee’s FMLA leave at the level and under the
conditions coverage would have been provided if the employee had been employed continuously for the
duration of such leave. See 29 U.S.C. § 2614(c). The legislative history further explains that “[n]othing in
[2614(c)] requires an employer to provide health benefits if it does not do so at the time the employee
commences leave. [Section 2614(c)] is strictly a maintenance of benefits provision.”
S. Rep. 103-3 at 31 (1993).

Pursuant to 29 U.S.C. § 2614(a)(2), “[t]he taking of leave under section [2612] shall not result in the loss
of any employment benefit accrued prior to the date on which the leave commenced.” (Emphasis
added.) The FMLA goes on to clarify that a restored employee is not entitled to “the accrual of any
seniority or employment benefits during any period of leave.” Id. § 2614(a)(3)(A) (emphasis added). The
regulations provide that “if the benefit plan is predicated on a pre-established number of hours worked
each year and the employee does not have sufficient hours as a result of taking unpaid FMLA leave, the
benefit is lost.” 29 C.F.R. § 825.215(d)(5).

Where an employee is covered by a group health insurance plan at the time FMLA leave commences, the
employer “shall maintain coverage ... for the duration of such leave.” 29 U.S.C. § 2614(c)(1). However,
the FMLA does not require an employer to provide health insurance coverage if such coverage is not
provided to the employee when the leave commences. As such, if the eligible employee is not entitled to
group health insurance coverage prior to the start of FMLA-qualifying leave because he or she has not
worked 1500 hours in the previous calendar year as required by the CBA, the employer is not required to
provide health insurance coverage during the FMLA leave. Nor is the employer required to provide
insurance coverage to an employee who does not meet the 1500 hours requirement due to FMLA leave
the employee took in the prior year.

Moreover, the FMLA and its regulations prohibit employers from interfering with, restraining, or denying
an employee’s rights under this law. See 29 U.S.C. § 2615; 29 C.F.R. § 825.220. Specifically, 29 U.S.C.
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U.S. Department of Labor
Employment Standards Administration
Wage and Hour Division
Washington, D.C. 20210

§ 2652 and 29 C.F.R. § 825.700 describe the interaction between the FMLA and employer plans and
provide that nothing in the FMLA diminishes an employer’s obligation under a CBA to provide greater
family or medical leave rights to employees than the rights established under the FMLA, nor may the
rights established under the FMLA be diminished by a CBA. Therefore, if the contract provides that other
types of leave, paid or unpaid, count as hours worked for purposes of determining eligibility for health
insurance in the following year, the FMLA leave of an equivalent type would need to be treated in the
same manner.

This opinion is based exclusively on the facts and circumstances described in your request and is given
based on your representation, express or implied, that you have provided a full and fair description of all
the facts and circumstances that would be pertinent to our consideration of the question presented.
Existence of any other factual or historical background not contained in your letter might require a
conclusion different from the one expressed herein. You have represented that this opinion is not sought
by a party to pending private litigation concerning the issue addressed herein. You have also
represented that this opinion is not sought in connection with an investigation or litigation between a client
or firm and the Wage and Hour Division or the Department of Labor.

Sincerely,

Alfred B. Robinson, Jr.
Acting Administrator

* Note: The actual name(s) was removed to preserve privacy in accordance with 5 U.S.C. 552 (b)(7).

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