FAQs about HR Issues

Discrimination
What interview questions are illegal to ask?
What is age discrimination?
What is disability discrimination?
What is pregnancy discrimination?
What is racial and ethnic harassment?
What religious accommodations do I have to give my employees?
What is sexual harassment?
What is the Immigration Reform and Control Act?
Is there any law which states that employees must be granted time off to serve on jury duty leave?

Federal Posting Requirements
What documents am I legally required to post for employees?

Employment Records
What employment records must I keep?

American with Disabilities Act (ADA)
Does the ADA require an employer to give an employee time off to care for a spouse, son, daughter, parent or other individual with a disability?
Who is protected from employment discrimination?
Who is a "qualified individual with a disability"?
Does an employer have to give preference to a qualified applicant with a disability over other applicants?
Does the ADA require employers to develop written job descriptions?
What is "reasonable accommodation"?
What are some of the accommodations applicants and employees may need?
When is an employer required to make a reasonable accommodation?
What are the limitations on the obligation to make a reasonable accommodation?
Must an employer modify existing facilities to make them accessible?
Can an employer be required to reallocate an essential function of a job to another employee as a reasonable accommodation?
Can an employer be required to modify, adjust, or make other reasonable accommodations in the way a test is given to a qualified applicant or employee with a disability?
Can an employer maintain existing production/performance standards for an employee with a disability?
Can an employer establish specific attendance and leave policies?
Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee with a disability?
Does the ADA override Federal and State health and safety laws?
How does the ADA affect workers' compensation programs?
What is discrimination based on "relationship or association" under the ADA?
How are the employment provisions enforced?
What financial assistance is available to employers to help them make reasonable accommodations and comply with the ADA?
What are an employer's record keeping requirements under the employment provisions of the ADA?
Does the ADA require that an employer post a notice explaining its requirements?
What resources does the Equal Employment Opportunity Commission have available to help employers and people with disabilities understand and comply with the employment requirements of the ADA?
Can an employer refuse to hire an applicant or fire a current employee who is illegally using drugs?
Is testing for illegal drugs permissible under the ADA?
Does the ADA cover alcoholics?

Family and Medical Leave Act (FLMA)
What leave is an employee entitled to under the FMLA?
Who is considered an immediate "family member" for purposes of taking FMLA leave?
How is the 12-month period calculated under FMLA?
Do the 12 months of service with the employer have to be continuous or consecutive?
What other rights do "eligible" employees have in conjunction with FMLA leave?
Which employees are eligible to take FMLA leave?
Do the 1,250 hours include paid leave time or other absences from work?
If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?
Can the employer count time on maternity leave or pregnancy disability leave as FMLA leave?
Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?
What is a "serious health condition" under the FMLA?
Does workers' compensation leave count against an employee's FMLA leave entitlement?

ADA and FMLA
What is the relationship between requirements of the FMLA (The Family and Medical Leave Act) the ADA (Americans with Disabilities Act) and Title VII?
How do the ADA and the FMLA requirement compare regarding intermittent or occasional leave?
Do the ADA and the FMLA require an employer to continue an employee’s health insurance coverage during medical leave?
As an alternative to a leave of absence, may an employer offer an effective reasonable accommodation that will enable an employee to continue working?
Does the FMLA’s limit of 12 workweeks of leave in a 12 - month period mean that the ADA also limits employees to 12 weeks of leave per year?
Are all employees who are protected by Title VII or the ADA also entitled to leave under the FMLA?
Is an FMLA "serious health condition" the same as an ADA "disability"?

HIPAA
How does HIPAA limit the preexisting conditions that can be excluded from coverage under preexisting condition exclusion?
Are there other "preexisting conditions" that cannot be excluded from coverage?
What is "creditable coverage"?
How does "crediting" for prior coverage work under HIPPA?
Can plans contract with an issuer to provide the certificates for their employees?
When must group health plans and issuers provide the certificates?
Are plans and issuers required to issue certificates of creditable coverage to dependents of covered employees?
What is the minimum period of time that should be covered by the certificate?
What are a plan’s obligations with respect to special enrollment when an individual becomes a new dependent through marriage, birth, adoption, or placement for adoption?

COBRA
Is your plan covered by COBRA?
Are all employers subject to the COBRA rules?
What is a group health plan?
What are the rules for counting employees when considering qualifications for COBRA?
Who is entitled to COBRA coverage?
Who are qualified beneficiaries?
What events trigger COBRA coverage?
What if an employee or family member's coverage was reduced or eliminated before a qualifying event?
What if the loss of coverage takes place sometime after the qualifying event?
Do the COBRA coverage rules apply if an employee is terminated for cause?
What is meant by a reduction in hours?
What kind of coverage must be offered?
What if the employer later makes changes in the health plan covering a COBRA beneficiary?
Who is responsible for COBRA coverage when a business is sold?
What if a COBRA beneficiary moves out of the area served by the employer's plan?
How do plan deductibles apply to a COBRA beneficiary?
How does the employer handle limits on plan benefits?
Can a COBRA beneficiary ever change his or her coverage?
How long does COBRA coverage last?
Can COBRA coverage be cut off earlier than the end of the maximum coverage period?
Can an employer terminate COBRA coverage upon the beneficiary becoming eligible for other coverage?
Are there any other circumstances in which an employer can terminate a beneficiary's COBRA coverage?
Is the COBRA coverage period ever extended?
What if the employer provides non-COBRA coverage for a period of time after a qualifying event? Does that extend the COBRA coverage period?
Does a qualified beneficiary have to be offered the right to enroll in a conversion plan at the end of the COBRA period?
How do beneficiaries elect COBRA coverage?
When does the election have to be made?
Does the covered employee or qualified beneficiary have to inform the plan of a qualifying event?
Does the plan have to provide coverage before the election is made?
What if a beneficiary waives COBRA coverage before the end of the election period?
Can the employer withhold money or other benefits until a beneficiary makes up his or her mind about COBRA coverage?
If multiple beneficiaries lose coverage because of a qualifying event, can each one make a separate COBRA election?
How do beneficiaries pay for COBRA coverage?
How does the plan figure the premium?
Can the plan charge for the period of coverage before the COBRA election is made?
Can the plan increase a beneficiary's premium during the COBRA coverage period?
At what intervals can the plan require premiums to be made?
What if the beneficiary doesn't pay, or doesn't pay on time?
What if the beneficiary does not pay in full?

What interview questions are illegal to ask?

The guidelines issued by the EEOC include the following list of unacceptable questions:

Age: It is recommended that employers do not ask questions, such as:

• When did you graduate from high school?
• What is your birth date?
• When do you plan on retiring?

Arrest Records: Do not ask questions regarding an applicant’s arrest record. If you are concerned about an applicant’s trustworthiness and it is job-related, you may ask about an applicant’s conviction record.

Disability: It is not appropriate to ask an applicant whether or not they have a particular disability. However, you may ask if the applicant can perform the basic functions of the position.

Emergency Contacts - Do not ask for the name of a relative, instead just simply ask for the name of a person that may be contacted in the event of an emergency.

Gender: No job-related considerations exist that would justify asking an applicant a question based upon gender.

Height/Weight: A company may ask these questions only if they are related to specific job requirements of the position. Otherwise, these questions expose the company to potential claims of national origin discrimination.

National Origin: No job related considerations exist that would justify asking an applicant a question based upon their national origin. However, it is recommended that you should ask if an applicant is legally employable in the United States and may prove it upon request.

Race: No job-related considerations exist that would justify asking an applicant a question based upon race.

Religion: No job-related considerations exist that would justify asking an applicant a question based upon religion. If a concern exists about religious obligations that may restrict the availability to work on certain days or times, then you may ask "Are there any times you are unavailable to work?"

Sexual Preference: Federal law does not address the issue of sexual preference. However some state and local laws do consider sexual preference a protected class. Therefore, in those particular locations there are no permissible questions regarding an applicant's sexual preferences.

What is age discrimination?
The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against older workers (persons 40 or older) in all aspects of employment, including hiring and benefits.

What is disability discrimination?
The ADA prohibits employers from discriminating against qualified individuals with disabilities. An individual with a disability is someone who:

• has a physical or mental impairment that substantially limits one or more major life activities, or
  
• has a record of such an impairment, or
  
• is regarded as having such an impairment.
  

What is pregnancy discrimination?
Under Title VII, discrimination on the basis of pregnancy, childbirth, or related medical conditions is unlawful sex discrimination.

Title VII's prohibition against pregnancy discrimination applies to all terms and conditions of employment, including hiring, firing, promotion, leave, and benefits.

What is racial and ethnic harassment?
Harassment on the basis of an individual's race or national origin violates Title VII.

What religious accommodations do I have to give my employees?
An employer is required to provide an accommodation for employees' sincerely held religious observances or practices unless the accommodation would impose an undue hardship on the employer's business.

What is sexual harassment?
Sexual harassment is a form of unlawful sex discrimination.

Sexual harassment includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that are made a condition of employment, that unreasonably interfere with work performance, or that create an intimidating, hostile, or offensive work environment.

What is the Immigration Reform and Control Act?
The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful for an employer to hire any person who is not legally authorized to work in the United States, and it requires employers to verify the employment eligibility of all new employees.

Is there any law which states that employees must be granted time off to serve on jury duty leave?

The Jury Systems Improvement Act of 1978 (JSIA) makes it unlawful for any employer to discharge, threaten to discharge, intimidate, or coerce and employee because of jury service. However, it does not require employers to pay their employees’ salaries during jury duty. Upon the conclusion of jury duty service, an employee should be reinstated to their positions without loss of seniority and continue their insurance and other benefits according to established leave of absence policies.

What documents am I legally required to post for employees?

Practically all federal and most state employment laws have some notice posting requirements. Such notices must be posted conspicuously and in enough places so employees can see them as they enter and exit the workplace.

Following are the FEDERAL POSTING REQUIREMENTS:

Type of Poster	Who Must Post	Online Poster
Family and Medical Leave	Employers with 50 or more employees during 20 weeks of the year.	Family and Medical Leave Poster
Federal Minimum Wage	Employers engaged in interstate commerce and who are subject to the Fair Labor Standards Act's minimum wage provisions.	Federal Minimum Wage Poster
Job Health & Safety	Employers engaged in interstate commerce.	Job Safety & Health Protection Poster
Equal Employment and Opportunity	Employers engaged in interstate commerce with 15 or more employees.	Equal Employment and Opportunity Poster
Employee Polygraph Protection Act	All employers engaged in commerce or in production of goods for commerce.	Employee Polygraph Protection Act Poster
Davis-Bacon Act	Employers with public construction contracts for $2,000 or more.	Davis-Bacon Act Poster
Service Contract Act/Walsh-Healey	Employers engaged in government contracts of $10,000 or more.	Service Contract Act/Walsh-Healey Poster

Does the ADA require an employer to give an employee time off to care for a spouse, son, daughter, parent or other individual with a disability?
The ADA’s reasonable accommodation obligation does not require a covered employer to give an employee time off to care for a spouse, son, daughter, parent or other individual with a disability with whom the employee has a relationship. However, an employer would be required to provide leave on the same terms as it normally provides leave to employees who need to care for someone who is ill.

Who is protected from employment discrimination?
Employment discrimination is prohibited against "qualified individuals with disabilities." This includes applicants for employment and employees. An individual is considered to have a "disability" if s/he has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such impairment. Persons discriminated against because they have a known association or relationship with an individual with a disability also is protected.

The first part of the definition makes clear that the ADA applies to persons who have impairments and that these must substantially limit major life activities such as seeing, hearing, speaking, walking, breathing, performing manual tasks, learning, caring for oneself, and working. An individual with epilepsy, paralysis, HIV infection, AIDS, a substantial hearing or visual impairment, mental retardation, or a specific learning disability is covered, but an individual with a minor, non-chronic condition of short duration, such as a sprain, broken limb, or the flu, generally would not be covered.

The second part of the definition protecting individuals with a record of a disability would cover, for example, a person who has recovered from cancer or mental illness.

The third part of the definition protects individuals who are regarded as having a substantially limiting impairment, even though they may not have such impairment. For example, this provision would protect a qualified individual with a severe facial disfigurement from being denied employment because an employer feared the "negative reactions" of customers or co-workers.

Who is a "qualified individual with a disability"?
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the "essential functions" of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.

Does an employer have to give preference to a qualified applicant with a disability over other applicants?
No. An employer is free to select the most qualified applicant available and to make decisions based on reasons unrelated to a disability. For example, suppose two persons apply for a job as a typist and an essential function of the job is to type 75 words per minute accurately. One applicant, an individual with a disability, who is provided with a reasonable accommodation for a typing test, types 50 words per minute; the other applicant who has no disability accurately types 75 words per minute. The employer can hire the applicant with the higher typing speed, if typing speed is needed for successful performance of the job.

Does the ADA require employers to develop written job descriptions?
No. The ADA does not require employers to develop or maintain job descriptions. However, a written job description that is prepared before advertising or interviewing applicants for a job will be considered as evidence along with other relevant factors. If an employer uses job descriptions, they should be reviewed to make sure they accurately reflect the actual functions of a job. A job description will be most helpful if it focuses on the results or outcome of a job function, not solely on the way it customarily is performed. A reasonable accommodation may enable a person with a disability to accomplish a job function in a manner that is different from the way an employee who is not disabled may accomplish the same function.

What is "reasonable accommodation"?
Reasonable accommodation is any modification or adjustment to a job or the work environment that will enable a qualified applicant or employee with a disability to participate in the application process or to perform essential job functions. Reasonable accommodation also includes adjustments to assure that a qualified individual with a disability has rights and privileges in employment equal to those of employees without disabilities.

What are some of the accommodations applicants and employees may need?
Examples of reasonable accommodation include making existing facilities used by employees readily accessible to and usable by an individual with a disability; restructuring a job; modifying work schedules; acquiring or modifying equipment; providing qualified readers or interpreters; or appropriately modifying examinations, training, or other programs. Reasonable accommodation also may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to do the original job because of a disability even with an accommodation. However, there is no obligation to find a position for an applicant who is not qualified for the position sought. Employers are not required to lower quality or quantity standards as an accommodation; nor are they obligated to provide personal use items such as glasses or hearing aids.

The decision as to the appropriate accommodation must be based on the particular facts of each case. In selecting the particular type of reasonable accommodation to provide, the principal test is that of effectiveness, i.e., whether the accommodation will provide an opportunity for a person with a disability to achieve the same level of performance and to enjoy benefits equal to those of an average, similarly situated person without a disability. However, the accommodation does not have to ensure equal results or provide exactly the same benefits.

When is an employer required to make a reasonable accommodation?
An employer is only required to accommodate a "known" disability of a qualified applicant or employee. The requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual's known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer and the individual should work together to identify one. There are also many public and private resources that can provide assistance without cost.

What are the limitations on the obligation to make a reasonable accommodation?
The individual with a disability requiring the accommodation must be otherwise qualified, and the disability must be known to the employer. In addition, an employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense" when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer's operation. Undue hardship is determined on a case-by-case basis. Where the facility making the accommodation is part of a larger entity, the structure and overall resources of the larger organization would be considered, as well as the financial and administrative relationship of the facility to the larger organization. In general, a larger employer with greater resources would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

If a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship. Also, if the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost, which would constitute an undue hardship, or providing the accommodation.

Must an employer modify existing facilities to make them accessible?
The employer's obligation under title I is to provide access for an individual applicant to participate in the job application process, and for an individual employee with a disability to perform the essential functions of his/her job, including access to a building, to the work site, to needed equipment, and to all facilities used by employees. For example, if an employee lounge is located in a place inaccessible to an employee using a wheelchair, the lounge might be modified or relocated, or comparable facilities might be provided in a location that would enable the individual to take a break with co-workers. The employer must provide such access unless it would cause an undue hardship.

Under title I, an employer is not required to make its existing facilities accessible until a particular applicant or employee with a particular disability needs an accommodation, and then the modifications should meet that individual's work needs. However, employers should consider initiating changes that will provide general accessibility, particularly for job applicants, since it is likely that people with disabilities will be applying for jobs. The employer does not have to make changes to provide access in places or facilities that will not be used by that individual for employment-related activities or benefits.

Can an employer be required to reallocate an essential function of a job to another employee as a reasonable accommodation?
No. An employer is not required to reallocate essential functions of a job as a reasonable accommodation.

Can an employer be required to modify, adjust, or make other reasonable accommodations in the way a test is given to a qualified applicant or employee with a disability?
Yes. Accommodations may be needed to assure that tests or examinations measure the actual ability of an individual to perform job functions rather than reflect limitations caused by the disability. Tests should be given to people who have sensory, speaking, or manual impairments in a format that does not require the use of the impaired skill, unless it is a job-related skill that the test is designed to measure.

Can an employer maintain existing production/performance standards for an employee with a disability?
An employer can hold employees with disabilities to the same standards of production/performance as other similarly situated employees without disabilities for performing essential job functions, with or without reasonable accommodation. An employer also can hold employees with disabilities to the same standards of production/performance as other employees regarding marginal functions unless the disability affects the person's ability to perform those marginal functions. If the ability to perform marginal functions is affected by the disability, the employer must provide some type of reasonable accommodation such as job restructuring but may not exclude an individual with a disability who is satisfactorily performing a job's essential functions.

Can an employer establish specific attendance and leave policies?
An employer can establish attendance and leave policies that are uniformly applied to all employees, regardless of disability, but may not refuse leave needed by an employee with a disability if other employees get such leave. An employer also may be required to make adjustments in leave policy as a reasonable accommodation. The employer is not obligated to provide additional paid leave, but accommodations may include leave flexibility and unpaid leave.
A uniformly applied leave policy does not violate the ADA because it has a more severe effect on an individual because of his/her disability. However, if an individual with a disability requests a modification of such a policy as a reasonable accommodation, an employer may be required to provide it, unless it would impose an undue hardship.

Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee with a disability?
Yes. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat --i.e., a significant risk of substantial harm --to the health or safety of the individual or of others, if that risk cannot be eliminated or reduced below the level of a "direct threat" by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically supportable methods that there is significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes, the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

Does the ADA override Federal and State health and safety laws?
The ADA does not override health and safety requirements established under other Federal laws even if a standard adversely affects the employment of an individual with a disability. If a standard is required by another Federal law, an employer must comply with it and does not have to show that the standard is job related and consistent with business necessity. For example, employers must conform to health and safety requirements of the U.S. Occupational Safety and Health Administration. However, an employer still has the obligation under the ADA to consider whether there is a reasonable accommodation, consistent with the standards of other Federal laws, that will prevent exclusion of qualified individuals with disabilities who can perform jobs without violating the standards of those laws. If an employer can comply with both the ADA and another Federal law, then the employer must do so.

The ADA does not override State or local laws designed to protect public health and safety, except where such laws conflict with the ADA requirements. If there is a State or local law that would exclude an individual with a disability from a particular job or profession because of a health or safety risk, the employer still must assess whether a particular individual would pose a "direct threat" to health or safety under the ADA standard. If such a "direct threat" exists, the employer must consider whether it could be eliminated or reduced below the level of a "direct threat" by reasonable accommodation. An employer cannot rely on a State or local law that conflicts with ADA requirements as a defense to a charge of discrimination.

How does the ADA affect workers' compensation programs?
Only injured workers who meet the ADA's definition of an "individual with a disability" will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers' compensation or other disability laws. A worker also must be "qualified" (with or without reasonable accommodation) to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to "substantially limit" a major life activity. Also, many on-the-job injuries cause temporary impairments, which heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers' compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA. An employer may not inquire into an applicant's workers' compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person's workers' compensation history in a medical inquiry or examination that is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) shows a previous on-the-job injury unless all applicants in the same job category are required to have an examination. Also, an employer may not base an employment decision on the speculation that an applicant may cause increased workers' compensation costs in the future. However, an employer may refuse to hire, or may discharge an individual who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.

An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-offer inquiry about his/her condition or worker's compensation history.

An employer also may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers' compensation offices and "second injury" funds without violating ADA confidentiality requirements.

What is discrimination based on "relationship or association" under the ADA?
The ADA prohibits discrimination based on relationship or association in order to protect individuals from actions based on unfounded assumptions that their relationship to a person with a disability would affect their job performance, and from actions caused by bias or misinformation concerning certain disabilities. For example, this provision would protect a person whose spouse has a disability from being denied employment because of an employer's unfounded assumption that the applicant would use excessive leave to care for the spouse. It also would protect an individual who does volunteer work for people with AIDS from a discriminatory employment action motivated by that relationship or association.

How are the employment provisions enforced?
The employment provisions of the ADA are enforced under the same procedures now applicable to race, color, sex, national origin, and religious discrimination under title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991. Complaints regarding actions that occurred on or after July 26, 1992 may be filed with the Equal Employment Opportunity Commission or designated state human rights agencies. Available remedies will include hiring, reinstatement, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorneys' fees, expert witness fees, and court costs. Compensatory and punitive damages also may be available in cases of intentional discrimination or where an employer fails to make a good faith effort to provide a reasonable accommodation.

What financial assistance is available to employers to help them make reasonable accommodations and comply with the ADA?
A special tax credit is available to help smaller employers make accommodations required by the ADA. An eligible small business may take a tax credit of up to $5,000 per year for accommodations made to comply with the ADA. The credit is available for one-half the cost of "eligible access expenditures" that are more than $250 but less than $10,250. A full tax deduction, up to $15,000 per year, also is available to any business for expenses of removing qualified architectural or transportation barriers. Expenses covered include costs of removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles. Information about the tax credit and the tax deduction can be obtained from a local IRS office, or by contacting the Office of Chief Counsel, Internal Revenue Service. Tax credits are available under the Targeted Jobs Tax Credit Program (TJTCP) for employers who hire individuals with disabilities referred by State or local vocational rehabilitation agencies, State Commissions on the Blind, or the U.S. Department of Veterans Affairs, and certified by a State Employment Service. Under the TJTCP, a tax credit may be taken for up to 40 percent of the first $6,000 of first-year wages of a new employee with a disability. This program must be reauthorize each year by Congress, and currently is extended through June 30, 1993. Further information about the TJTCP can be obtained from the State Employment Services or from State Governors' Committees on the Employment of People with Disabilities.

What are an employer's record keeping requirements under the employment provisions of the ADA?
An employer must maintain records such as application forms submitted by applicants and other records related to hiring, requests for reasonable accommodation, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship for one year after making the record or taking the action described (whichever occurs later). If a charge of discrimination is filed or an action is brought by EEOC, an employer must save all personnel records related to the charge until final disposition of the charge.

Does the ADA require that an employer post a notice explaining its requirements?
The ADA requires that employers post a notice describing the provisions of the ADA. It must be made accessible, as needed, to individuals with disabilities. A poster is available from EEOC summarizing the requirements of the ADA and other Federal legal requirements for nondiscrimination for which EEOC has enforcement responsibility. EEOC also provides guidance on making this information available in accessible formats for people with disabilities.

What resources does the Equal Employment Opportunity Commission have available to help employers and people with disabilities understand and comply with the employment requirements of the ADA?
The Equal Employment Opportunity Commission has developed several resources to help employers and people with disabilities understand and comply with the employment provisions of the ADA. Resources include: A Technical Assistance Manual that provides "how-to" guidance on the employment provisions of the ADA as well as a resource directory to help individuals find specific information.

Can an employer refuse to hire an applicant or fire a current employee who is illegally using drugs?
Yes. Individuals who currently engage in the illegal use of drugs are specifically excluded from the definition of a "qualified individual with a disability protected by the ADA and when in action is taken of the basis of their drug use.

Is testing for illegal drugs permissible under the ADA?
Yes. A test for illegal drugs is not considered a medical examination under the ADA; therefore, employers may conduct such testing of applicants or employees and make employment decisions based on the results. The ADA does not encourage, prohibit, or authorize drug tests.

Does the ADA cover alcoholics?
Yes. While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

What leave is an employee entitled to under the FMLA?
Under the FMLA, an "eligible" employee may take up to 12 workweeks of leave during any 12-month period for one or more of the following reasons:
(1) The birth of a child, and to care for the newborn child;
(2) The placement of a child with the employee through adoption or foster care, and to care for the child
(3) To care for the employee’s spouse, son, daughter, or parent with a serious health condition
(4) Because a serious health condition makes the employee unable to perform one or more of the essential functions of his or her job

Who is considered an immediate "family member" for purposes of taking FMLA leave?
An employee's spouse, children (son or daughter), and parents are immediate family members for purposes of FMLA. The term "parent" does not include a parent "in-law." The terms son or daughter do not include individuals age 18 or over unless they are "incapable of self-care" because of a mental or physical disability that limits one or more of the "major life activities." Those terms are defined in regulations issued by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disabilities Act (ADA).

How is the 12-month period calculated under FMLA?
Employers may select one of four options for determining the 12-month period:

• the calendar year;
  
• any fixed 12-month "leave year" such as a fiscal year, a year required by State law, or a year starting on the employee's "anniversary" date;
  
• The 12-month period measured forward from the date any employee's first FMLA leave begins; or a "rolling" 12-month period measured backward from the date an employee uses FMLA leave.

Do the 12 months of service with the employer have to be continuous or consecutive?
No. The 12 months do not have to be continuous or consecutive; all time worked for the employer is counted.

What other rights do "eligible" employees have in conjunction with FMLA leave?
During FMLA leave, an employer must maintain the employee’s existing level of coverage under a group health plan. At the end of FMLA leave, an employer must take an employee back into the same or an equivalent job.

Which employees are eligible to take FMLA leave?
Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

Do the 1,250 hours include paid leave time or other absences from work?
No. The 1,250 hours include only those hours actually worked for the employer. Paid leave and unpaid leave, including FMLA leave, are not included.

If an employer fails to tell employees that the leave is FMLA leave, can the employer count the time they have already been off against the 12 weeks of FMLA leave?
In most situations, the employer cannot count leave as FMLA leave retroactively. Remember, the employee must be notified in writing that an absence is being designated as FMLA leave. If the employer was not aware of the reason for the leave, leave may be designated as FMLA leave retroactively only while the leave is in progress or within two business days of the employee's return to work.

Can the employer count time on maternity leave or pregnancy disability leave as FMLA leave?
Yes. Pregnancy disability leave or maternity leave for the birth of a child would be considered qualifying FMLA leave for a serious health condition and may be counted in the 12 weeks of leave so long as the employer properly notifies the employee in writing of the designation.

Can the employer count leave taken due to pregnancy complications against the 12 weeks of FMLA leave for the birth and care of my child?
Yes. An eligible employee is entitled to a total of 12 weeks of FMLA leave in a 12-month period. If the employee has to use some of that leave for another reason, including a difficult pregnancy, it may be counted as part of the 12-week FMLA leave entitlement.

What is a "serious health condition" under the FMLA?
An FMLA "serious health condition" is "an illness, injury, impairment, or physical or mental condition that involves ... inpatient care ... or continuing treatment by a health care provider.

Does workers' compensation leave count against an employee's FMLA leave entitlement?
It can. FMLA leave and workers' compensation leave can run together, provided the reason for the absence is due to a qualifying serious illness or injury and the employer properly notifies the employee in writing that the leave will be counted as FMLA leave.

What is the relationship between requirements of the FMLA (The Family and Medical Leave Act) the ADA (Americans with Disabilities Act) and Title VII?
The FMLA and the ADA both require a covered employer to grant medical leave to an employee in certain circumstances: The FMLA and Title VII both have requirements governing leave for pregnancy and pregnancy-related conditions. In addition, under Title VII, employers must not discriminate on the basis of race, color, religion, sex, or national origin when they provide family or medical leave

How do the ADA and the FMLA requirement compare regarding intermittent or occasional leave?
Under the ADA, a qualified individual with a disability may work part-time in his/her current position, or occasionally take time off, as a reasonable accommodation if it would not impose an undue hardship on the employer. The ADA does not prohibit an employer and an employee from agreeing on another mutually acceptable accommodation. Under the FMLA, an "eligible" employee may take leave intermittently or on a part-time basis for his or her own "serious health condition" when medically necessary for treatment or recovery, until s/he has used up the equivalent of 12 workweeks in a 12-month period

Do the ADA and the FMLA require an employer to continue an employee’s health insurance coverage during medical leave?
Under the ADA, an employer must continue health insurance coverage for an employee taking leave or working part-time only if the employer also provides coverage for other employees in the same leave or part-time status. The coverage must be on the same terms normally provided to those in the same leave or part-time status. Under the FMLA, an employer always must maintain the employee’s existing level of coverage (including family or dependent coverage) under a group health plan during the period of FMLA leave, provided the employee pays his or her share of the premiums.

As an alternative to a leave of absence, may an employer offer an effective reasonable accommodation that will enable an employee to continue working?
An employer may offer an employee a reasonable accommodation other than the leave s/he requested under the ADA, as long as it is effective. For example, an employer may offer an alternative device; an opportunity to work reduced hours in the employee’s current job, or a temporary assignment to another job, if these are effective accommodations. However, if the individual is "eligible" for leave under the FMLA and has a serious health condition that prevents him/her from performing an essential job function, s/he has the right to take a leave of absence of up to 12 workweeks in 12 months. Even if s/he could continue working with an effective reasonable accommodation. While the FMLA does not prevent an employee from accepting an alternative to leave, the acceptance must be voluntary and uncoerced.

Does the FMLA’s limit of 12 workweeks of leave in a 12 - month period mean that the ADA also limits employees to 12 weeks of leave per year?
No. The FMLA does not mean that more than 12 weeks of unpaid leave automatically imposes an undue hardship for purposes of the ADA. An otherwise qualified individual with a disability is entitled to more than 12 weeks of unpaid leave as a reasonable accommodation if the additional leave would not impose an undue hardship on the operation of the employer’s business. To evaluate whether additional leave would impose an undue hardship, the employer may consider the impact on its operations caused by the employee’s initial 12-week absence, along with the undue hardship factors specified in the ADA.

Are all employees who are protected by Title VII or the ADA also entitled to leave under the FMLA?
No, employees protected by Title VII or the ADA must be independently "eligible" for FMLA leave. "Eligibility" for FMLA leave depends on several factors, for example, length of service

Is an FMLA "serious health condition" the same as an ADA "disability"?
No. An FMLA "serious health condition" is not necessarily an ADA "disability." An ADA "disability" is an impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having such an impairment. Some FMLA "serious health conditions" may be ADA disabilities, for example, most cancers and serious strokes. Other "serious health conditions" may not be ADA disabilities, for example, pregnancy or a routine broken leg or hernia.

How does HIPAA limit the preexisting conditions that can be excluded from coverage under preexisting condition exclusion?
Under HIPAA, the only preexisting conditions that may be excluded under a preexisting condition exclusion are those for which medical advice, diagnosis, care or treatment was recommended or received within the 6-month period ending on your enrollment date. Your "enrollment date," is your first day of coverage, or if there is a waiting period, the first day of your waiting period (typically, your date of hire).

Are there other "preexisting conditions" that cannot be excluded from coverage?
Yes. Preexisting condition exclusions cannot be applied to pregnancy, regardless of whether the woman had previous coverage. In addition, a preexisting condition exclusion cannot be applied to a newborn, adopted child under 18, or a child under 18 placed for adoption as long as the child became covered under the health plan within 30 days of birth, adoption or placement for adoption, and provided th3e child does not incur a subsequent 63-day or longer break in coverage. Finally, genetic information may not be treated as a preexisting condition in the absence of a diagnosis.

Again, if your coverage is insured through an insurance company or offered through and HMO, state law may provide additional protections. Check with your State Insurance Commissioner’s Office to see whether additional State Law protections regarding preexisting conditions apply to you.

What is "creditable coverage"?
Most health coverage is creditable coverage, such as coverage under a group health plan (including COBRA continuation coverage), HMO, individual health insurance policy, Medicaid or Medicare.

Creditable coverage does not include coverage consisting solely of "excepted benefits," such as coverage solely for limited-scope dental or vision benefits.

Days in a waiting period during which you have no other coverage are not creditable coverage under the plan, nor are these days taken into account when determining a significant break in coverage (generally a break of 63 days or more). As mentioned earlier, this 63-day break period may be extended under state law if your coverag4 is insure through and insurance company or offered through and HMO. Check with your State Insurance Commissioner’s Office to see whether a longer break period applies to you.

How does "crediting" for prior coverage work under HIPPA?
Most plans use the "standard method" of crediting coverage. Under the standard method, you receive credit for your previous coverage that occurred without a break in coverage of 63 days of more. Any coverage occurring prior to a break in coverage of 63 days or more is not credited against a preexisting condition exclusion period.
To illustrate, suppose an individual had coverage for 2 years followed by a break in coverage of 70 days and then resumed coverage for 8 months. That individual would only receive credit for 8 months of coverage; no credit would be given for the 2 years of coverage prior to the break in coverage of 70 days.

Can plans contract with an issuer to provide the certificates for their employees?
Yes. To avoid duplication of certificates, a plan may contract with the issuer to provide the certificate. Furthermore, if any entity (including a third-party administrator) provides a certificate to an individual, no other party is required to provide the certificate.

When must group health plans and issuers provide the certificates?
Plans and issuers must furnish the certificate automatically to:

• An individual who is entitled to elect COBRA continuation coverage, at a time no later than when a notice is required to be provided for a qualifying event under COBRA.
• An individual who loses coverage under a group health plan and who is not entitled to elect COBRA continuation coverage, within a reasonable time after coverage ceases; and
• An individual who has elected COBRA continuation coverage, either within a reasonable time after the plan learns that COBRA continuation coverage ceased or, if applicable, within a reasonable time after the individual’s grace period for the payment of COBRA premiums ends.

Are plans and issuers required to issue certificates of creditable coverage to dependents of covered employees?
Yes. A plan or issuer must make reasonable efforts to collect the necessary information for dependents and issue the dependent a certificate of creditable coverage. If the coverage information for a dependent is the same as for the employee, one certificate wi5ht both the employee and dependent information can be provided. However, an automatic certificate for a dependent is not required to be issued until the plan or issuer knows (or, making reasonable efforts, should know) of the dependent’s loss of coverage. This information can be collected annually, such as during an open enrollment period.

What is the minimum period of time that should be covered by the certificate?
It depends on whether the certificate is issued automatically of upon request:

• For a certificate that is issued automatically, the certificate should reflect the most recent period of continuous coverage.
  
• For a certificate that is issued upon request, the certificate should reflect each period of continuous coverage ending within 24 months prior to the date of the request.

At no time must the certificate reflect more than 18 months of creditable
coverage that is not interrupted by a break in coverage of 63 days or more. In addition, the resulting coverage must be effective no later than the first day of the first calendar month beginning after the date the completed request for enrollment is received.

What are a plan’s obligations with respect to special enrollment when an individual becomes a new dependent through marriage, birth, adoption, or placement for adoption?
Employees, as well as their spouses and dependents may have special enrollment rights after marriage, birth, adoption, or placement for adoption. In addition, new spouses and new dependents of retirees in a group health plan may also have special enrollment rights after a marriage, birth, adoption, or placement for adoption.

If a special enrollment opportunity is available, the individual must request special enrollment within 30 days of the marriage, birth, adoption, or placement of adoption that triggered the special enrollment opportunity. In case of marriage, enrollment is requi5ed to be effective not later than the fist day of the first calendar month beginning after the date the completed request for enrollment is received by the plan. In the case of birth, adoption, or placement of adoption, enrollment is required to be effective not later than the date of such birth, adoption, or placement of adoption.

Is your plan covered by COBRA?
As a general rule, the COBRA continuation coverage requirements apply to any group health plan that is maintained by an employer to provide healthcare to individuals (or their families) who have an employment-related connection to the employer. Thus, the COBRA rules apply to plans covering employees or former employees.

Are all employers subject to the COBRA rules?
The COBRA rules generally apply to any employer that maintains a group health plan. However, there is an exception for small employers.

A small employer is exempt from the COBRA coverage requirements if it normally employs fewer than 20 employees during the preceding calendar year. Under the final regulations, an employer will qualify as a small employer if it had fewer than 20 employees on at least 50% of the typical business days during the prior year

What is a group health plan?
The COBRA rules define the term "health plan" broadly. A plan is a group health plan whether healthcare is provided directly or through an insurance or reimbursement arrangement, such as a flexible spending arrangement.

A group insurance policy covering a number of employees is clearly a group health plan. However, the new regulations make it clear that individual insurance policies covering two or more employees will also be treated as a group health plan for COBRA purposes.

An arrangement to provide medical services on your company's business premises will generally be treated as a group health plan. However, the regulations make it clear that an on-site facility that primarily provides first aid to current employees at no charge during working hours is not covered by the COBRA requirements.

Moreover, the regulations make it clear that the COBRA requirements apply only to employer-sponsored programs that provide medical care and treatment. The rules do not apply to programs that simply further general good health, such as a spa, swimming pool, or fitness center.

However, high-deductible health insurance that is provided by an employer in connection with a medical savings account is covered by COBRA.

What are the rules for counting employees when considering qualifications for COBRA?
Under the new rules, only common law employees have to be counted. Self-employed individuals (e.g., the owner of an unincorporated business), independent contractors, and directors do not have to be counted even if they are covered by the same plan as common-law employees.

Part-time employees do have to be counted-but they do not count as full employees. Instead, each part-time employee counts as a fraction of an employee equal to the number of hours the part-timer works divided by the number of hours he or she would have to work to be considered full-time. The number of hours necessary to be full-time depends on the employer's normal business practice, but may not be more than 8 hours a day or 40 hours a week.

In addition, instead of counting employees on a day-by-day basis, the final regulations permit employers to count employees by pay period and apply that number to each typical business day in the pay period. Whether employees are counted play-by-day or by pay period, the same method must be used for all employees for the entire year.

A plan that is not a small-employer plan for a given period remains liable for COBRA coverage that was triggered during that period, even if it later becomes a small-employer plan.

Who is entitled to COBRA coverage?
Your company must provide COBRA coverage to "qualified beneficiaries" who would otherwise lose coverage under a group health plan because of certain triggering events (so-called "qualifying" events).

Who are qualified beneficiaries?
As a general rule, a qualified beneficiary includes any individual who is covered under the plan on the day before a qualifying event as a covered employee, the spouse of a covered employee, or a dependent child of a covered employee. A child who is born to or placed for adoption with a covered employee during a period of COBRA coverage is also a qualified beneficiary.

For this purpose, a covered employee includes anyone who is covered under a group health plan by virtue of an employment relationship to the employer. For example, a retiree or former employee is a covered employee if he or she is covered by the plan because of his or her former employment with the employer. Unlike the small employer exception, self-employed individuals, independent contractors, and directors are covered employees if their relationship to the employer makes them eligible to be covered by the plan.

Bear in mind, however, that an employee who is merely eligible for coverage is not a covered employee if he or she is not actually covered under the plan. In general the reason for the lack of actual coverage (such as having declined participation or having failed to satisfy the plan's conditions for participation) is irrelevant. Similarly, a covered employee's spouse or dependent (other than an after-born or adopted child) is not a qualified beneficiary if he or she is not actually covered by the plan on the day before the qualifying event.

In the case of a cafeteria plan or flexible spending arrangement (FSA), the COBRA coverage requirements apply only to healthcare benefits that an employee has actually chosen to receive.

What events trigger COBRA coverage?
There are six different "qualifying events" that can trigger your company's responsibility to provide COBRA coverage to an employee or an employee's family members:

1. death of a covered employee
2. termination or reduction in hours of a covered employee's employment
3. divorce or legal separation of an employee and his or her spouse
4. entitlement of a covered employee to Medicare benefits
5. a child's ceasing to be a dependent who is eligible to be covered under the plan
6. bankruptcy of the employer.

What if an employee or family member's coverage was reduced or eliminated before a qualifying event?
If the reduction or elimination of coverage was made in anticipation of the event, COBRA coverage is required when the event occurs. For example, COBRA coverage would be required if an employer eliminates an employee's health coverage in anticipation of the employee's termination of employment or an employee drops coverage for a spouse in anticipation of divorce. The reduction or elimination of coverage must be ignored in determining whether the event results in a loss of coverage.

What if the loss of coverage takes place sometime after the qualifying event?
A loss of coverage need not take place simultaneously with the qualifying event, so long as the loss of coverage occurs before the end of the maximum COBRA coverage period for that event.

Do the COBRA coverage rules apply if an employee is terminated for cause?
Yes, they do. As a general rule, the reasons for an employee's termination of employment are irrelevant. It does not matter if the employee quit voluntarily or was discharged. However, there is one exception: COBRA coverage does not have to be made available if an employee is terminated for gross misconduct.

What is meant by a reduction in hours?
A reduction of hours occurs whenever there is a decrease in the hours that a covered employee is required to work or actually works, as long as there is no immediate termination of employment. Thus, a switch from full-time or part-time work would trigger COBRA coverage if the employee loses health benefits as a result of the change. An absence due to disability or a temporary layoff is also a reduction in hours, even though the employee's hours are reduced to zero.

If a plan measures eligibility for coverage by the number of hours worked in a given time period, such as the preceding month or quarter, an employee who fails to work the requisite hours has experienced a reduction in hours resulting in a loss of coverage.

What kind of coverage must be offered?
When a qualifying event occurs, each qualified beneficiary who loses coverage must be offered the opportunity to elect to receive the same group health coverage that is provided to similarly situated active employees and their family members who have not experienced a qualifying event (called "non-COBRA beneficiaries"). Ordinarily, this will be the same coverage that the qualified beneficiary had on the day before the qualifying event.

This was a change from the old proposed regulations, where employers whose plans included both core medical age and non-core coverage (such as vision or dental benefits) were required to carve out and offer core-only coverage to COBRA beneficiaries. The final regulations drop that requirement, and your company can simply offer COBRA beneficiaries the same health package they had elected before the qualifying event.

What if the employer later makes changes in the health plan covering a COBRA beneficiary?
Under the old proposed regulations, if an employer changed or eliminated a COBRA beneficiary's coverage, the employer was required to allow the beneficiary to switch to any other plan available to similarly situated non-COBRA beneficiaries.

However, the final regulations provide that COBRA beneficiaries are basically in the same boat as active employees and their families. Any change in benefits applies equally to both COBRA and non-COBRA beneficiaries. However, an employer can't cut off coverage for COBRA beneficiaries if it maintains any health plans. If an employer eliminates a plan, any COBRA beneficiaries enrolled in that plan must be offered the option of enrolling in another plan, even if active employees are not offered that option.

Who is responsible for COBRA coverage when a business is sold?
The regulations provide that in the case of both stock sales and sales of substantial assets, such as a division or plant, the seller retains the obligation to provide COBRA continuation coverage for existing qualified beneficiaries. However, if the seller ceases to provide any group health plan to any employee in connection with the sale, the buyer is responsible for providing COBRA coverage to existing, qualified beneficiaries.

On the other hand, the regulations provide that the buyer and seller are free to allocate the responsibility for providing COBRA coverage by contract, even if the contract imposes responsibility on a different party than the party that would be responsible under the regulations. As long as the party to whom the contract allocates responsibility follows through, the other party will have no responsibility for providing COBRA coverage. However, if the party with responsibility under the contract does not perform, the party with responsibility under the COBRA regulations will be held accountable.

What if a COBRA beneficiary moves out of the area served by the employer's plan?
Under the proposed regulations, a COBRA beneficiary who moved outside the area served by a region-specific plan (an HMO, for example) had to be given the right to obtain other coverage from the employer only if the employer had employees in the new area.

The final regulations eliminate the requirement that the employer must have employees in the beneficiary's new locale. Instead, other coverage must be provided if the employer can provide coverage under an existing plan.

How do plan deductibles apply to a COBRA beneficiary?
COBRA beneficiaries are generally subject to the same deductibles as any other plan participant. If COBRA coverage begins during a deductible period, the COBRA beneficiary must retain credit for expenses incurred before the COBRA event occurred.

If the plan computes deductibles separately for each individual covered by the plan, an individual's remaining deductible on the date COBRA coverage begins is the same as that individual's deductible on the day before the COBRA event.

The proposed regulations provided that all expenses credited against a family unit were carried over for the COBRA coverage. The new regulations provide that the remaining deductible for the family on the date that COBRA coverage begins depends on the members of the family electing COBRA coverage. In other words, only the expenses of those members actually electing COBRA coverage need to be taken into account. Moreover, if there is more than one family unit following the qualifying event (for example, in the case of a divorce), the family deductible can be computed separately for each family unit based on the members in that unit.

How does the employer handle limits on plan benefits?
Plan limits carry over to the COBRA period in much the same way as plan deductibles, on either an individual or family unit basis. This rule applies both to limits on plan benefits (such as a maximum number of hospital days or a cap on reimbursable expenses) and to limits on out-of-pocket expenses (such as limits on copayments or a catastrophic limit).

Can a COBRA beneficiary ever change his or her coverage?
As a general rule, a qualified beneficiary only has a right to continue the coverage he or she had immediately before the qualifying event. However, there are exceptions to that rule.

As noted above, a beneficiary who leaves the area covered by a region-specific plan must be offered alternative coverage under another plan of the employer. In addition, if the employer has an open enrollment period during which similarly situated active employees can switch plans or benefit packages or add or eliminate family members, the same enrollment period rights must be given to the COBRA beneficiary.

HIPAA may also give COBRA beneficiaries the right to add new family members to their coverage. However, with the exception of a child born to or placed for adoption with a covered employee during the period of COBRA coverage, family members who were not covered at the time of a qualifying event are not themselves qualified beneficiaries. And, as we shall see, that fact is important if there is another qualifying event during a period of COBRA coverage.

How long does COBRA coverage last?
As a general rule, COBRA coverage lasts for 18 months if the qualifying event was termination of employment or a reduction in hours or 36 months in the case of other qualifying events.

Can COBRA coverage be cut off earlier than the end of the maximum coverage period?
Yes. An employer can terminate a COBRA beneficiary's coverage on the earliest of the following dates:

• the last day of the maximum COBRA coverage period
• the first day for which timely payment is not made for the coverage
• the date the employer ceases to provide any group health plan to any employee
• the date, after the date of the election, on which the beneficiary becomes covered by another group health plan e the date, after the date of the election, on which the beneficiary first becomes entitled to Medico

Can an employer terminate COBRA coverage upon the beneficiary becoming eligible for other coverage?
The regulations make it clear that the qualified beneficiary must actually be covered by another plan, rather than merely eligible to be covered. In addition, the other plan must not contain any exclusion or limitation with respect to a pre-existing condition of the qualified beneficiary (unless the exclusion or limitation is automatically satisfied because of the restrictions on pre-existing condition exclusions imposed by HIPAA).

Are there any other circumstances in which an employer can terminate a beneficiary's COBRA coverage?
An employer can terminate a beneficiary's coverage for cause on the same basis that it would terminate the coverage of a non-COBRA beneficiary. For example, if a plan terminates the coverage of active employees who submit fraudulent claims, a qualified beneficiary's coverage can also be terminated for submission of a fraudulent claim.

If an individual who is not a qualified beneficiary has coverage only because of his or her relationship to a qualified beneficiary, that individual's coverage can be terminated whenever the qualified beneficiary's coverage ceases.

Is the COBRA coverage period ever extended?
Yes. An initial 18-month COBRA coverage period is extended to 29 months if a qualified beneficiary is determined to be disabled at any time during the first 60 days of COBRA coverage. An individual who was determined to be disabled before the COBRA coverage period began will qualify if he or she remains disabled on the date COBRA coverage begins. The 29-month coverage period is not limited to the disabled beneficiary. It applies to each qualified beneficiary who is entitled to COBRA coverage because of the same qualifying event.

The 60-day period is measured from the date of the qualifying event (or loss of coverage, if later), not the COBRA election. In the case of a child who is born to or placed for adoption with a covered employee during a period of COBRA coverage, the 60-day period is measured from the date of birth or placement for adoption.

To qualify for the extension, a qualified beneficiar