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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
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Experience:  Employment/Labor Law Litigation
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I have HR responcibilities for a 12 person New Jersey company. An

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I have HR responcibilities for a 12 person New Jersey company.
An employee had a stroke on April 1 leaving him paralized on on side. We would have him back as much as possible, depending on his recovery. I have continued to pay him as a regular employee. He has applied for NJ Temporary Disabilitee. I understand that I must lower this continued pay so that, when added to the disability benefit, it does not exceed his wage prior to the stroke.

I have several question for which I am getting vage or conflicting answers.
First - regarding maintaining health insurance (Horizon Blue Cross Blue Shild of N.J.,HMO).: We want to keep him on the plan for a time, until it becomes clear whether he will be able to return. Our insurance agent says he must be terminated as of the first day he could not come to work, and be offered NJ Small Group Continuation (like COBRA) .I have aslo heared that the employee has the choice when to terminate him from the group policy. This is becoming an even more serious issue since we will have
exceeded the time frame from the "qualifying event, and may be in danger of losing his coverage. Please give me some guidence on this.

Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.


Ok. The issue here is that you can't artificially keep him employed. As a smaller employer, you are not legally subject to the FMLA laws that would require you to maintain his employment for up to 12 weeks. So, because you aren't subject to it, maintaining his employment (while I completely understand and admire your desire to do so) is not something that you can point to a law as your basis for doing. If you aren't legally compelled, then your insurance carrier is also not legally compelled.


So, this is really more of a insurance issue. Your insurer is stating that he does not fit their definition of an employee and, as your insurer, they can legally make that definition. If you want your definition of "employee" expanded, you'd have to come to a new group rate agreement.


Certainly, with larger employers, they are already paying a very high group rate and their insurers will give them more latitude in when a person is dropped from the insurance rolls. Smaller employers simply don't have as much leverage.


So, your insurer is not doing anything illegal by asking you to remove this person from the rolls. You can still choose to pay him, but you'll need to speak to the insurer about what status you can refer to this employee as which will allow him to have the "qualifying event" to have COBRA coverage initiated. Most likely, it will be something like a medical leave of absence. You can then do whatever you want, in terms of payment and he can be dropped from the group plan and placed on an individual COBRA plan (which you can also assist with, if you want).


Now, I would explain to the insurance company that you will drop him from the rolls ONLY at a point where his COBRA can be initiated without an interruption in coverage and that they need to figure out how to do that. Put this on them.

Customer: replied 4 years ago.
Should I be asking BXBS or the broker about assuring continuity?

Also, On the BXBS change/enrollment form, they ask for date of COBRA Qualifying Event and to state the qualifying event from a list provided on the instructions page. The relevant choices seem to be either "termination of job" or "Disibility (occurring subsequent to another qualifying event)". What are they looking for here?
Do I need to terminate first? Could this "reset" the clock?

You should discuss with BXBS how to tailor the qualifying event here to make sure his dates work out.


Again, this is an insurance contracting issue more than it is a law issue.


I would not use termination though. Rather, disability allows you to assign a date for the "qualifying event." At first, it was uncertain whether or not he could immediately return, but now that he has been out, it is clear that it is going to take some time. So, he has now moved into the "disabled" category.


The insurance company is simply looking for a "qualifying event" from their list of events found in your insurance contract which changes this person's status from employee to non-employee so that they can populate a COBRA insurance request in their system.

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