When an employee takes sick leave that isn’t covered under FMLA, how long must the employer allow the employee to stay on the health plan?

When FMLA isn’t an issue – either because the employer isn’t subject to it or because the employee isn’t eligible – there is no federal requirement to continue an employee’s health benefits while the employee is out on the non-FMLA leave. However, sometimes there are state laws that will mandate certain leave be provided, and require that health coverage be continued.

Generally, insurance contracts include “actively at work” policies that stipulate how long an employee can be on non-FMLA leave before they becomes ineligible for health coverage. Many insurance contracts make employees ineligible for coverage once they have been out on non-FMLA leave for a period of 30 days or more. The employer should keep that in mind for these employees as well, because the employees’ coverage could be limited by the eligibility terms of the insurance contract (or self-insured plan document).

If the insurance contract and plan document don’t include such an “actively at work” clause, then the employer should review their policies to be consistent with what’s provided to employees on other types of unpaid leave. For example, if benefits continue for employees on sabbatical or personal leaves of absence, then the employer would probably want to do the same thing with employees who take non-FMLA medical leave. This is especially the case if the employee is taking leave due to a disability. The employer wouldn’t want to be at risk of violating the Americans with Disabilities Act or HIPAA’s nondiscrimination rules related to medical conditions and disability.

The employer should also consider any state or local requirements to continue coverage. While many states don’t give any additional protection outside of FMLA, other states do.

Finally, an employer who ceases to offer coverage to an employee taking leave should be sure to offer COBRA when the employee’s coverage is terminated (assuming the employer is subject to COBRA). Since the employee would be experiencing a reduction in hours and a loss of coverage, they would be eligible for COBRA. As such, the employer would need to send the employee a COBRA election notice once their coverage was terminated. This would give the employee the opportunity to elect COBRA for the maximum coverage period.