Can I Ask An Employee To Send a Check For Insurance?
Question: Our company pays 50% of the employee’s health insurance premium and the portion the employee pays is deducted from their payroll weekly. I have an employee who was injured in July 2014 and is still out today on workers comp. If an employee is not working, we cannot deduct their check for health insurance. Can I notify them that they will need to send in a check monthly to cover their percentage of health insurance? My payroll service has told me that I am not responsible for paying 100% of the injured employee’s health insurance and the industrial commission of my state has told me the same thing.
Answer: There are several issues lurking within this question. First, is the employee on FMLA leave while out with the workers comp injury? (FMLA applies to employers with more than 50 employees; there are other requirements as well—and FMLA can be used for work-related injuries.) If the answer is yes, then the employer can ask for a check to pay the premium but cannot drop coverage for non-payment while on FMLA, although the employer can attempt to recover back premiums upon the conclusion of the FMLA leave. If the answer is no—the employee is not on FMLA leave—then the employee can be directed to pay his share of the premium. Another question–why is the employee still employed after many months out of work? Many employers are under the impression that an injured employee must remain employed indefinitely. An employee unable to work because of a work-related injury can in most circumstances be replaced—and separation of employment will not impact their eligibility for workers comp benefits. Lastly, a caveat: Workers compensation law varies somewhat from state to state so it may be a good idea to consult local counsel to determine if employees out on workers comp in your state have more specific rights.
This response is intended for general informational purposes only and should not be construed as legal advice or a legal opinion, nor is this column a substitute for formal legal assistance. For help with particular legal needs, members are invited to consult with Brooke Duncan III of Adams and Reese LLP. Mr. Duncan can be reached at 504-585-0220 or by email at firstname.lastname@example.org .
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