Here's a question from the client inquiry line this past week, and it pops up often enough that I figured I would share:

Q: An employee on maternity leave contacted us two months into leave that she will not be returning to work at the end of FMLA leave (which now is one month away). Is her employment terminated immediately? And can we recover any health care premiums we paid during her leave?

A: The question above raises two issues: 1) What are the restoration rights of an employee who has informed you they will not return after FMLA leave? and 2) Can the employer recover its share of health care premiums paid during FMLA leave?

Restoration Rights

As we know, employees generally are entitled to be restored to the same or equivalent position upon return from leave under the Family and Medical Leave Act. However, in this fact scenario, one important exception applies. Under the regulations:

If an employee gives unequivocal notice of intent not to return to work, the employer's obligations under FMLA to maintain health benefits (subject to COBRA requirements) and to restore the employee cease. However, these obligations continue if an employee indicates he or she may be unable to return to work but expresses a continuing desire to do so. (My emphasis, not the DOL's.)

When do the employer's obligations to maintain health benefits and restore the employee cease? Immediately. According to the regulations, an employee's FMLA rights effectively end where they have provided uneqivocal notice (defined by Merriam-Webster as "leaving no doubt") that they will not return.

Recover Health Care Premiums

Under the regulations, the employer may recover its share of health plan premiums during a period of unpaid FMLA leave from an employee if the employee fails to return to work, unless the reason for not returning to work is due to, among other things, "circumstances beyond the employee's control. The Department of Labor makes clear that this phrase is "necessarily broad" and includes a situation where the employee chooses to stay home with a newborn child who has a serious health condition. However, the DOL acknowledges that this caveat clearly does not cover a situation where the employee chooses to stay home with a "well, newborn child."

Beware of Treating Employees Differently

Although employers technically have the right to recover health care premiums from a mom who voluntarily decides not to return to work, should they recover them? On one hand, the decision may be based on company culture and business priorities. On the other hand, might the recovery of premiums in these situations open the employer up to a claim of gender discrimination? Do you do this for all employees who do not return after FMLA expires? Recovering premiums only from the mom who chooses not to return might be inadvertent -- and bad -- evidence of gender discrimination. A theory perhaps, but what do you think?