Health Care Coverage An employee who takes COVID-19 paid sick time or paid family leave is entitled to continued coverage under the employer's group health plan on the same terms as if the employee did not take leave. Maintenance of an individual health insurance policy purchased by an employee from an insurance provider remains the sole responsibility of the employee. Employees in a group health plan who take paid sick time or paid family leave remain responsible for paying the same portion of the plan premium that the employee paid prior to taking leave. The employee's share of premiums must be paid by the method normally used during any paid leave, usually through payroll deductions. If an employee does not make premium payments or chooses not to retain group health plan coverage while taking paid sick time or paid family leave, the employee is entitled to be reinstated on the same terms as prior to taking the leave, including family member coverage, upon returning to work. Job Protection and Return to Work In most instances, an employee is entitled to be restored to the same or an equivalent position upon return from paid sick time or paid family leave in the same manner that an employee would be returned to work after FMLA leave. What About Layoffs? The new statute does not protect an employee from employment actions, such as layoffs, that would have affected the employee regardless of whether the leave was taken. The employer must be able to demonstrate that the employee would have been laid off even if he or she had not taken leave. This provision tracks with the existing provision under the FMLA. The employer has the same burden of proof to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment. There is one exception to the above rule. The FMLA's restoration provision does not apply to an employer who has fewer than twenty-five employees if four specific conditions are met. Refer to the regulations for the detailed criteria, if applicable. Keep Those Records! Employers are required to retain all COVID-19 related leave documentation for four (4) years, regardless of whether leave was granted or denied. If an employee provided oral statements to support his or her request for paid sick time or paid family leave, the employer is required to document that information and retain it for four years. If an employer denies an employee's request for leave pursuant to the small business exemption, the employer must document its authorized officer's determination that the prerequisite criteria for that exemption are satisfied and retain such documentation for four years. Full documentation for tax credits claimed should be retained to support claims for any tax credits taken to offset paid leave payments.
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