Rule Rule 101-030-0015
Continuation of Core Benefit Coverage for Employees Covered under the Federal Family Medical Leave Act (FMLA) and the Oregon Family Leave Act (OFLA)


Employees taking approved FMLA or OFLA leave are entitled to the continuation of employer provided health coverage. The agency is obligated to maintain the employee’s health coverage under the same conditions that would have applied had the employee not been in leave.


If the FMLA or OFLA leave is substituted paid leave, then the employee’s share of premiums for continuation must be paid by payroll deduction.


An agency may offer one or more of the following options, to an employee who continues core benefit coverage while on an unpaid FMLA or OFLA leave. Before commencing the leave, or shortly thereafter, the employee and the agency must agree to one of the following options for employee premium share.


Prepay. The employee is given the opportunity to prepay their premium share due during the leave period before the leave begins. The prepay option cannot be the sole option offered to employees on FMLA or OFLA leave.


Pay as you go. The employee pays the cost of coverage in installments during the leave. Contributions are paid with after-tax dollars or with pre-tax dollars to the extent that the employee receives compensation (e.g. unused sick or vacation days) during the leave.


Catch-up options. The employer and employee agree in advance that the employer will advance payment of the employee’s share of the cost of coverage during the leave and that the employee will repay the advanced amounts when the employee returns to work.


Revoke Coverage. Employees may revoke the employer offered core health coverages during the leave. In this event the agency sends a COBRA notice of availability.


Employees enrolled as Opt Out, receiving cash in lieu of medical benefits, do not receive the monthly payment when in leave without pay status, regardless of approved FMLA or OFLA leave.


An employer is not required to continue the benefits of an employee who fails to make required payments while on FMLA or OFLA leave provided notice procedures are followed. Refer to OAR 101-020-0002 (Plan Effective Dates, Employee Eligibility Continuation, and Plan Termination Dates)(7)(d) for employee non-payment notices and benefit termination. If the employer chooses to continue the health coverage of an employee who fails to pay his or her share of the premium payments the employer is permitted to recoup the employee’s premium.


A Health Care FSA is a group health plan under FMLA or OFLA. Refer to OAR 101-020-0065 (Health Flexible Spending Arrangement)(9) regarding required payment options during a FMLA or OFLA leave. Prepayment cannot be the only method offered for FSA continuation during FMLA or OFLA leaves.


An eligible employee may continue the following optional plans during the approved FMLA or OFLA leave by self-paying premiums or contributions to the agency:


All Optional Life Insurances:


Short Term and Long Term Disability,


Accidental Death and Dismemberment Insurance:


Long Term Care


An agency must provide a benefit eligible employee who is in FMLA or OFLA leave during the annual open enrollment period the opportunity to select benefits for the coming plan year.


An employee returning to paid regular status the first day following the end of an approved FMLA or OFLA leave or as scheduled, or an employee in a current benefit eligible stability period is not required to work at least half-time in the month of return to be eligible for benefits the following month. Core benefits and optional coverages are reinstated if available retroactive to the first day of the month that the employee returns to work.


The employee must self-pay premiums for optional insurance plan reinstatements for the month in which they return.


An employee returning to work will not be reinstated in Long Term Care unless the employee had continued the coverage by self-paying premiums during the leave.


An employee’s FSA enrollment status, active or terminated, will depend on the employee’s FSA continuation status during the leave. If the employee’s FSA enrollment terminated during the leave the employee may enroll.


An employee that waives all coverages for the leave period and returns to paid regular status beyond 30 days of loss of coverage but within 12 months from the loss of coverage, is reinstated to coverage and can make midyear plan changes within 30 days of the date they return to work. This includes enrollment for a FSA account or long term care.


An employee who does not return to paid regular status the first work day immediately following the end of approved FMLA or OFLA leave as scheduled, and is not in a current benefit eligible stability period is considered the same as if returning from an unprotected leave without pay. The employee is required to work at least half time 80 hours in the month of return to receive reinstated benefits the following month. See OAR 101-020-0045 (Returning to Work)(2)(a).


A COBRA qualifying event occurs when (i) the employee does not return to work as scheduled the first day after the qualified leave ends and is not in a current stability status, or (ii) the employee terminates employment.
Last accessed
Sep. 26, 2020