Numerous federal and state laws extend specific health care rights to you and your dependents under your employer's group health plan both during and after your employment. These laws include the Employee Income Retirement Security Act (ERISA), the Family and Medical Leave Act (FMLA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), the Americans with Disabilities Act (ADA), the Older Workers Benefit Protection Act (OWBPA), civil rights laws and state insurance laws.

Health Care Rights During Employment - Under ERISA, employers must provide plan participants with copies of the latest summary plan description and summary annual report. The summary plan description describes the benefit provisions of your employer's health plan, such as eligibility requirements, basic medical benefits, out-of-pocket maximums, co-payments, deductibles and plan limitations. Other documents, such as the plan itself or any collective bargaining agreement, contract or trust agreement governing the plan, must be made available upon your request. (A reasonable fee may be charged for copying). Actions for enforcement of benefits may be filed by plan participants and beneficiaries against the plan itself. For example, an employee who believes he/she was improperly denied a medical benefit may file suit against the plan in federal court. However, the employee should first exhaust the intra-company appeals process provided by the plan itself. Your employer must provide you with a written response, including the specific reasons for the denial and the specific plan sections upon which the denial is based.

The Family and Medical Leave Act (FMLA) ensures eligible employees up to twelve weeks of unpaid leave for the birth or adoption of a child or a serious health condition affecting the employee or his or her spouse, child or parent. Your employer (if fifty or more employees) is obligated to continue your health coverage on the same terms and conditions as if you were actively employed. This means, of course, that you must continue to pay your premium, if any. Tennessee's Maternity Leave statute (if one hundred or more employees) provides up to four months of unpaid maternity leave with continued health care coverage, provided, again, that the employee remits the requisite premiums.

A reduction in work hours, for example, going from full-time to part-time employment, an extended layoff, or a leave of absence not covered under the FMLA, is a qualifying event under COBRA which allows you to continue group health care coverage for up to eighteen months, provided you pay the full premium. If you become divorced or separated (six calendar months following the last day the husband and wife live together), then a covered employer (if generally twenty employees) must offer your spouse and dependents the opportunity to elect continuation of health care coverage for up to thirty-six months. Similarly, if your dependent ceases to qualify as a dependent under the group plan (e.g., age nineteen and not a full-time student), then your employer must offer your dependent the opportunity to elect continued health care coverage for up to thirty-six months.

The Americans with Disabilities Act (ADA) provides health care protection to disabled employees. Employees with disabilities must be offered the same insurance as other employees and employers may not deny insurance coverage based on disability if the disability does not pose increased insurance risks. Furthermore, employers may not discriminate because an employee's family member has a disability that may increase the employer's insurance costs. At the same time, the ADA permits employers to maintain policies that exclude preexisting conditions. The ADA also allows employers to offer insurance policies that limit coverage for certain procedures or treatments to specified policy limits.

The OWBPA prevents your employer from discontinuing or reducing your level of health care coverage based on your attainment of a certain age while you are actively employed. Older workers must receive benefits under the group plan that have the same cost to the employer or the same benefit to employees as younger workers receive. This rule does not, however, apply to voluntary early retirement incentive plans.

Medicare Coverage - Whether during or after employment, you have the right to receive Medicare coverage upon attaining age 65 or becoming disabled (subject to a waiting period). While you are actively employed, your employer's group health plan is considered primary coverage and Medicare is secondary, which means that your employer's plan pays your medical bills first and Medicare pays amounts or portions thereof not covered by the plan. If, however, you are retired (and are sixty-five or older), then Medicare becomes primary. If you are actively employed and eligible for Medicare, your employer may encourage you to waive coverage under the employer's group health care plan. Such a waiver is legally effective only if it is completely voluntary on your part and made without financial incentive from your employer.

Health Care Rights After Employment - Under COBRA, upon termination of your employment (other than for gross misconduct, such as theft), you may elect to continue group health care coverage for you and your dependents for up to eighteen months. In some cases, the coverage may be extended for up to thirty-six months. You are responsible, in most cases, for the entire monthly premium payment, which is often considerably higher than the premium paid by active employees.

COBRA effectively supersedes Tennessee law with respect to group health insurance plans. There are, however, two situations in which Tennessee law is applicable. First, COBRA does not apply to employers with less than twenty employees, but Tennessee law is applicable to all employees. Second, under COBRA, if an employee is terminated for gross misconduct, he/she loses the right to continuation of coverage, but, under Tennessee law, an employee terminated for any reason is permitted to continue coverage.

For More Information - If you have any questions or would like more detailed information concerning the Family and Medical Leave Act, contact the local office of the U.S. Department of Labor. For Americans with Disabilities Act information, contact the Equal Employment Opportunity Commission or the Tennessee Human Rights Commission.. The Tennessee Department of Commerce and Insurance can answer questions concerning state insurance laws. If you have questions concerning Medicare, you may call the Social Security Administration at (800) 772-1213.

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The information available through TBALink LawBytes is basic legal information and is not a substitute for legal advice. LawBytes is provided by the Tennessee Bar Association as a public service and for general information only. It should not be considered legal advice. You should consult your attorney if you have questions concerning any specific situation. If you do not have an attorney, may we suggest that you contact your local bar association's referral service. The topics covered through TBALink LawBytes will provide basic information and should make it easier for someone with a problem to decide whether they need professional help from a lawyer or if another agency could provide them with assistance.