Under the new federal Family and Medical Leave Act, does a local school system have to pay for optional family-member health-insurance coverage while a teacher or staff member is out on FMLA leave?
Plain-English summary
Dr. Paul K. Browning, Superintendent of Greene County Public Schools, wrote the AG on July 15, 1993, just months after the federal Family and Medical Leave Act took effect, to ask whether the FMLA obligated his school system to pay for optional health-care coverage for an employee's family during FMLA leave. Chief Deputy AG Andrew A. Vanore, Jr. answered with a two-part rule.
The first part: the FMLA does obligate covered employers to maintain pre-existing health-plan coverage during authorized leave. Section 104(c)(1) of the FMLA provides that during any period an eligible employee takes leave under section 102, the employer must keep coverage under any "group health plan" in place for the duration of the leave, "at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave." Group health plan, as defined by section 5000(b)(1) of the Internal Revenue Code, includes a plan that provides health care to the employer's employees and to the families of those employees. So the family side of coverage is plainly within the maintenance duty: if the employee's spouse or children were on the plan before the leave, they have to stay on the plan during the leave at the same level of coverage.
The second part: the FMLA does not change who pays the premium. The maintenance duty operates "at the level and under the conditions coverage would have been provided" had the employee stayed at work. So if the employer's normal arrangement was that the employee paid for family coverage out of pocket (a common pattern in school-district group plans where the employer covers the employee-only tier and the employee buys up to family coverage), the employee remains responsible for those payments during FMLA leave. The employer does not have to start paying the family premium just because the employee is now on leave. The maintenance duty is about continuity of coverage, not about shifting the cost split.
That two-part answer settled the immediate question for Greene County and for any NC local government employer running a parallel group-health structure.
Currency note
This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The Family and Medical Leave Act, the federal regulations implementing it (29 C.F.R. Part 825), and significant case law have all evolved substantially since 1993. The basic rule that the employer maintains pre-existing coverage during leave and that the employee continues to owe his or her normal share of premium has been refined by U.S. Department of Labor regulations addressing premium-collection mechanics, consequences of an employee's failure to pay, recovery of premiums after a non-return, and interactions with COBRA. Anyone with a current FMLA compliance question should consult the current regulations, current U.S. DOL guidance, and counsel familiar with employee-benefits and leave law.
Common questions
Q: Is "maintain coverage" the same as "pay the entire premium"?
A: No. Maintain means keep in force, at the pre-leave level, on the pre-leave terms. If the employee was paying part of the premium before the leave, the employee continues to pay that part during the leave. The opinion is clear on this point: the FMLA does not shift the share of premium that the employer was already paying versus the share the employee was already paying.
Q: What if the employee on leave stops paying the family premium share?
A: The 1993 opinion does not address that scenario. Subsequent DOL regulations did, and they have specific rules about employer notice, grace periods, lapse of coverage, and recovery of premium when an employee fails to return. A school system facing that situation today should not rely on the 1993 opinion alone; current regulations control.
Q: Does the maintenance duty apply only to medical coverage or also to dental, vision, prescription, etc.?
A: Section 104(c)(1) refers to "group health plan" as defined by IRC § 5000(b)(1), which is broad enough to capture employer plans that provide health care directly or through third parties. The 1993 opinion does not slice between medical, dental, and vision, and modern practice generally treats all health-related employer-sponsored coverages as inside the FMLA maintenance duty. Other employer-sponsored benefits that are not "health" coverage (such as life insurance or disability) sit outside the FMLA maintenance duty, though many employers maintain those voluntarily during leave.
Q: Why did the AG even need to issue this opinion if Section 104(c)(1) is so clear?
A: The FMLA was brand new in 1993 and local government employers were uncertain about how to handle premium contributions during leave. The statute's text said "maintain coverage," and some employers read that as a one-way duty to absorb the cost. The AG settled that question for NC public school systems and, by extension, for similarly situated NC local government employers.
Q: Does this opinion address state-law leave entitlements?
A: No. The opinion is about the federal FMLA. NC has additional leave-related statutes and policies (parental school-involvement leave, for example), but those are separate frameworks with their own benefits rules.
Background and statutory framework
The Family and Medical Leave Act of 1993 was the first comprehensive federal job-protected leave statute. It required covered employers (employers of 50+ employees, including public agencies regardless of size) to provide up to 12 weeks of unpaid, job-protected leave per year for specified family and medical reasons, with continuation of group health plan coverage. Public school systems were among the most affected covered employers because they typically had complex group-health arrangements layered over a heavily unionized or contractually-bound workforce.
Section 102 of the FMLA defines the entitlement to leave. Section 104(a) is the job-restoration guarantee. Section 104(c) is the coverage-maintenance rule the AG construed: paragraph (1) imposes the maintenance duty; paragraph (2) carves out limited exceptions (for example, where the employer can show the leave-taking employee would not have remained employed during the leave for reasons unrelated to the leave). The AG's reading kept the employer's maintenance duty in line with what the employer was already doing, neither adding to the employer's bill nor letting the employer use the leave as a moment to drop family coverage.
Citations
- Family and Medical Leave Act of 1993, Pub. L. No. 103-3, § 102 (FMLA leave entitlement provision referenced in § 104(c)(1))
- Family and Medical Leave Act of 1993, Pub. L. No. 103-3, § 104(c)(1) (employer must maintain group health plan coverage during FMLA leave at pre-leave level and on pre-leave conditions)
- Internal Revenue Code of 1986, § 5000(b)(1) (defines "group health plan" as any plan of, or contributed to by, an employer, including a self-insured plan, to provide health care to the employer's employees, former employees, or the families of such employees or former employees)
Source
Original opinion text
July 29, 1993
Dr. Paul K. Browning
Superintendent
Greene County Public Schools
301 Kingold Boulevard
Snow Hill, North Carolina 28580
Re: Advisory opinion; Family and Medical Leave Act; Pub. L. 103-3 (1993)
Dear Dr. Browning:
On July 15, 1993, you wrote to ask whether the Family and Medical Leave Act of 1993, Pub. L. No. 103-3, (FMLA) obligates local educational units to provide optional health care coverage to an employee's family during periods of leave.
The FMLA obligates covered employers to maintain pre-existing health coverage. Section 104(c)(1) of the FMLA provides:
Except as provided in paragraph (2), during any period that an eligible employee takes leave under section 102, the employer shall maintain coverage under any "group health plan" (as defined in section 5000(b)(1) of the Internal Revenue Code of 1986) for the duration of such leave at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of such leave.
Section 5000(b)(1) of the Internal Revenue Code of 1986 defines "group health plan" as
[A]ny plan of, or contributed to by, an employer (including a self-insured plan) to provide health care (directly or otherwise) to the employer's employees, former employees, or the families of such employees or former employees.
In light of these provisions, it is our opinion that the FMLA obligates covered employers to maintain pre-existing coverage, including coverage for the employee's family, "at the level and under the conditions coverage would have been provided if the employee had continued in employment continuously for the duration of [authorized] leave." §104(c)(1). However, it is also our opinion that the FMLA does not obligate the employer to pay any premiums or make any contributions to a group health plan that it would not be obligated to make if the employee were not on leave. For example, if the employer requires the employee to pay for health care coverage for his or her spouse or family under the group health plan, then the employee would remain responsible for those payments during the period of any authorized leave.
I hope I have answered your question. If any other issues or questions should arise regarding the interpretation or application of the FMLA, please do not hesitate to write again.
Andrew A. Vanore, Jr.
Chief Deputy Attorney General