“Birth of a child” FMLA reason will garner more employee protections if bill passes

Senators JD Vance (R-OH) and Marco Rubio (R-FL) recently introduced the Fairness for Stay-at-Home Parents Act (S 3048). The bill would add “birth of a child” as a protected reason for not returning to work under the federal Family and Medical Leave Act (FMLA) in relation to group health care premiums.

If enacted, the bill would prohibit employers from recovering health care premiums and require them to continue their health premium contributions during the 12-weeks of FMLA leave.

Current law

While on FMLA leave, employers may require employees to pay their share of group health care premiums.

Presently, employers subject to the FMLA may recover health care premiums they paid from employees who don’t return to work from family leave for certain reasons:

• The continuation, recurrence, or onset of either a serious health condition of the employee or the employee's family member;
• A serious injury or illness of a covered servicemember which would entitle the employee to leave under the FMLA; or
• Other circumstances beyond the employee's control, such as:
  • Where a parent chooses to stay home with a newborn child who has a serious health condition,
  • An employee's spouse is unexpectedly transferred to a job location more than 75 miles from the employee's worksite,
  • A relative or individual other than a covered family member has a serious health condition, and the employee is needed to provide care,
  • The employee is laid off while on leave, or
  • The employee is a key employee who decides not to return to work upon being notified of the employer's intention to deny restoration because of substantial and grievous economic injury to the employer's operations and is not reinstated by the employer.

Other circumstances beyond the employee's control would NOT include a situation where:

• An employee desires to remain with a parent in a distant city even though the parent no longer requires the employee's care, or
• A parent chooses not to return to work to stay home with a well, newborn child.

Proposed change

If enacted, the bill would add “birth of a child” to the reasons employers may not recover premiums from employees who choose to not return to work.

Employers would need to notify employees who take leave for the birth of a child that employers may not recover any premium that the employer paid for maintaining coverage for the employee if the employee fails to return due to the birth.

The bill has been referred to the Senate Committee on Health, Education, Labor, and Pensions. It has a small chance of being enacted, but it helps illustrate what’s on the minds of members of Congress.

Key to remember: Members of Congress continue to work to amend the federal FMLA, this time in relation to reasons employees may choose to not return to work without risking their group health care premium repayments.