Code of Massachusetts Regulations › 458 CMR - DEPARTMENT OF FAMILY AND MEDICAL LEAVE › Title 458 CMR 2.00 - Family and Medical Leave › Section 2.16 - Employee Job Protection, Prohibition on Retaliation, Maintenance of Health Insurance

Current through Register 1525, July 5, 2024
(1)
Job
			 Protection
. An employee who has taken family or medical leave
			 under M.G.L. c. 175M shall on returning to employment at the close of a period
			 of approved family or medical leave be restored to the employee's previous
			 position or to an equivalent position with the same status, pay, employment
			 benefits, length-of-service credit and seniority as of the date of leave. An
			 employer shall not be required to restore an employee who has taken family or
			 medical leave under M.G.L. c. 175M to the previous or to an equivalent position
			 if other employees of equal length of service credit and status in the same or
			 equivalent positions have been laid off due to economic conditions or other
			 changes in operating conditions affecting employment during the period of
			 leave; provided, however, that the employee who has taken leave shall retain
			 any preferential consideration for another position to which the employee was
			 entitled as of the date of leave. Nor shall an employer be required to restore
			 an employee who was hired for a specific term or only to perform work on a
			 discrete project, if the employment term or project is over and the employer
			 would not otherwise have continued to employ the employee.
Upon reinstatement, taking family or medical leave under M.G.L.
				c. 175M shall not affect an employee's previously held right to accrue vacation
				time, sick leave, bonuses, advancement, seniority, length-of-service credit or
				other employment benefits, plans or programs. Leave periods under M.G.L. c.
				175M need not be treated as credited service for purposes of benefit accrual,
				vesting and eligibility to participate.
(2)
Maintenance of Health
			 Insurance
. During the duration of an employee's family or medical
			 leave, the employer shall continue to provide for, contribute to, or otherwise
			 maintain the employee's employment-related health insurance benefits, if any,
			 at the level and under the conditions that coverage would have been provided if
			 the employee had continued working continuously for the duration of such leave.
			 The provision "otherwise maintain" shall be interpreted broadly to encompass
			 any method of benefit maintenance or approximation of benefits that permits an
			 employee taking family or medical leave to maintain access to health coverage
			 for the duration of the leave on the same or equivalent terms, including the
			 employee's costs for such coverage, such as premium contributions, co-pays, and
			 deductibles. Employers may "otherwise maintain" coverage in a variety of ways
			 to comply with this provision including, but not limited to, the following
			 examples:
(a) The employer continues to pay
			 its portion of the group-insurance-plan health-insurance premium for that
			 employee for the duration of the family or medical leave from the employer, and
			 the employee portion of the employee's employment-related health insurance
			 benefits is remitted by the employee in accordance with the employer's
			 uniformly-applied policies or practices.
(b) The employer reimburses the employee out
			 of its general assets for both the monetary equivalent of the non-employee
			 portion of the health insurance premium and any additional amount required to
			 be paid under the federal COBRA law (29 U.S.C. §
										1161
et
			 seq.
) or the Massachusetts Mini COBRA law (M.G.L. c. 176J, § 9)
			 that is in excess of the non-employee portion of the health insurance premium,
			 so that the amount the employee pays toward health insurance remains unchanged,
			 until the employee can resume regular employer-sponsored coverage. This example
			 would be applicable only if an employee is eligible for such coverage. In a
			 multi-employer plan, the reimbursement out of general assets would be made by
			 the employer employing an employee at the start of the employee's family or
			 medical leave.
(c) An employer who
			 participates in a plan, such as a multi-employer health plan to which more than
			 one employer is required to contribute and which is maintained pursuant to one
			 or more collective bargaining agreements between employee organization(s) and
			 the employers, that establishes eligibility for coverage for a period of time
			 based on hours worked or contributions made during an earlier qualifying
			 period, allows employees who have established eligibility for coverage prior to
			 beginning a family or medical leave to continue coverage while they are taking
			 leave and while they remain eligible for coverage based on the earlier
			 qualifying period, or allows them to use banked hours.
(d) An employer participates in a
			 multi-employer plan that contains a provision for maintaining coverage such as
			 through pooled contributions by all employers party to the plan.
Employers shall not be required to provide for, contribute to,
				or otherwise maintain employment-related health insurance benefits to an
				employee who does not receive or is not eligible to receive such
				employment-related health insurance benefits when the employee's family or
				medical leave begins. Nor are employers required to provide for, contribute to,
				or otherwise maintain health insurance benefits to covered individuals who
				resign during a leave or are former employees when the covered individual's
				family or medical leave commences.