January

Proposed legislation

Bipartisan legislation has recently been introduced in the House that would require businesses to provide restroom access to truckers who are loading or delivering cargo at their warehouses, manufacturers, distribution centers, retailers, and ports.

Supported by leading organizations in the trucking industry, the Trucker Bathroom Access Act (H.R. 9592) was introduced on Dec. 15, 2022. The bill requires retailers, warehouses, and other establishments with existing restrooms to provide access to drivers who are loading or delivering cargo. Additionally, operators of ports and marine terminals must provide access for drayage and parking while accessing such restrooms.

This amendment to Title 49 would exempt some employers from the bill including filling and service stations, and restaurants 800-square feet or smaller with restrooms intended for employee use only. The bill doesn’t require employers to construct new restrooms but to give truck drivers the same access as employees or customers.

Your restroom availability affects their health

Commercial truckers and delivery drivers are the lifeline of our supply chain of supplies, products, and consumables. Working tirelessly all hours, during holidays and weekends, and throughout the pandemic, they continue to deliver critical food and emergency supplies to companies everywhere. Employers have the privilege of demonstrating gratitude to truckers and delivery drivers with a positive work environment.

The benefits of allowing truckers and delivery drivers the convenience and safety of readily available, sanitary restroom facilities are plenty. They’re able to rest and reset when necessary, which keeps them and others safer on the roads. Equally important, restroom availability prevents drivers from having to search for available facilities elsewhere, allowing them to keep a timely delivery schedule, limit supply chain delays, and ultimately lower costs for employers and customers.

Keys to remember

The proposed Trucker Bathroom Access Act will require retailers, warehouses, and other establishments with existing restrooms to provide access to truckers and delivery drivers who are loading or delivering cargo. Access to restrooms keeps them refreshed and ready to deliver essential supplies to companies across the country.

The basics of logging exemptions

To be able to use this logging exemption in 395.1(e)(1), the driver must:

• Stay within 150 air-miles of the work reporting location for the day (draw a 150 air-mile radius circle around the work reporting location for the day — the driver must stay within this circle),
• Be back to — and released from — the work reporting location for his/her 8- or 10-hour break within 14 hours, and
• Include the starting and ending times for the day and the total hours on duty on the time record for the day.

The company must retain the time record and have it available for inspection for six months.

What if the driver goes too far or works too many hours?

If the driver cannot meet the terms of the exemption (he or she goes too far or works too many hours), the driver must complete a regular driver’s log for the day as soon as the exemption no longer applies.

If the driver has had to complete a log 8 or fewer days out of the last 30 days, the driver can use a paper log for the day. If the driver had to complete a log more than 8 days out of the last 30 days, the driver needs to use an electronic log for the day (unless one of the ELD exemptions applies, such as operating a vehicle older than model year 2000).

30-minute break exemption

When a property-carrying driver is operating under the 150 air-mile exemption, the driver is also exempt from having to take the required 30-minute break (see 395.3(a)(3)(ii)).

If the driver began the day as a 150 air-mile driver and has driven more than 8 consecutive hours without a break, and something unexpected happens and the driver can no longer use the 150 air-mile exemption, the driver must stop and immediately take the 30-minute break as well as start logging. If the driver went outside of the 150 air-mile area before the driver had 8 hours of driving without a break from driving, the driver would be expected to take the break at the appropriate time.

Common myths

Here are some of the common myths and misunderstandings about the 150 air-mile exemption:

• The driver must have the time records in the vehicle. Myth. The driver simply needs to explain to an officer during a roadside inspection that he/she does not have logs due to operating under the 150 air-mile exemption and that the required time records are back at the carrier’s office (just telling the officer, “I don’t have any logs” will lead to a violation, so the driver needs to know to provide the full explanation).
• The driver must log the previous seven days if he/she had been using this exemption and suddenly can’t. Myth. If the driver cannot use the exemption on one particular day, that is the only day the driver must use a regular log (either paper or electronic).
• Passenger-carrying drivers and drivers hauling hazardous materials cannot use this exemption. Myth. There are no restrictions on the use of this exemption, so any commercial driver can use it.
• A driver that crosses state lines cannot use this exemption. Myth. As this exemption appears in the Federal Motor Carrier Administration (FMCSA) regulations, it can be used by interstate drivers.
• Only drivers that operate out of a “company terminal” can use the 150 air-mile exemption. Myth. As long as the driver makes it back to the work reporting location for the day within the appropriate number of hours, the driver can use the exemption.
• Drivers that move from one jobsite to another every few weeks cannot use this exemption. Myth. If a driver that normally uses this exemption switches work reporting locations, the day the driver switches work reporting locations is the only day the driver cannot use the exemption.
• Drivers covered by this exemption are also exempt from the driver qualification (licensing and medical cards), driving, and vehicle inspection requirements. Myth. The only rules the driver is exempt from are the logging requirement in 395.8 and the 30-minute break requirement in 395.3.
• The driver cannot drive more than 150 miles for the day. Myth. The driver can drive as many miles as he/she wants to or needs to, as long as the driver stays within the 150 air-mile radius circle and gets back to the work reporting location within the appropriate number of hours.
• If a 150 air-mile driver gets into a vehicle with an ELD, the driver must use it. Myth. The carrier can have the driver log in and have the driver entered into the system as an “exempt driver,” or the carrier can request that the driver not log into the device and then attach a comment to the unassigned driving time generated by the driver’s movements. The comment would need to explain that the driver using the vehicle was a 150 air-mile driver who submitted a time record. It is up to the carrier to decide which option to use. If stopped for a roadside inspection, the driver will need to be able to explain to the inspector that he/she is an exempt driver using the 150 air-mile exemption, so using the electronic log is not required.

What’s different with the ‘150 air-mile non-CDL property-carrying drivers’

The 150 air-mile exemption at 395.1(e)(2) only applies to drivers that: Operate property-carrying vehicles that do not require a CDL to operate, and Stay within the 150 air-miles of their work reporting location.

If the driver stays within the 150 air-mile radius of the work reporting location, and returns to the work reporting location within 14 hours on 5 of the last 7 days, and 16 hours on 2 of the last seven days, the driver is allowed to use a time record in place of a log.

If the driver does not meet the terms of the exception, the driver will need to complete a log for the day. If the driver had to log more than 8 days out of the last 30 days, the driver will need to use an electronic log for the day. All of the other issues discussed above would apply to these drivers as well.

Managing the use

If you have drivers that use these exemptions, you will need to check time records to make sure they are complying with the appropriate time limits. You will also need to check movement records to verify that the drivers using these exemptions are staying within the mandated area (within 150 air-miles of the work reporting location for the day).

If a driver is over the hours limit, or has gone too far, you need to verify that the submitted a log for the day, either paper or electronic, depending on how many days the driver had to log out of the previous 30 days.

Verifying compliance is important

During an audit, if it is discovered that your drivers are using these exemptions incorrectly, you will be cited for not having drivers’ logs when required. Each day this occurred will be another violation, so the fine could be rather large if you are not managing the use of these exemptions!

What DOT violation behaviors require action?

A commercial driver is required to go through the DOT return-to-duty process if:

• The driver:
  • Tested positive on a DOT drug test,
  • Failed a DOT alcohol test, or
  • Refused a DOT-required drug or alcohol test.

• The motor carrier has actual knowledge of the driver’s alcohol consumption:
  • Within four hours of coming on duty,
  • While on duty,
  • During the immediate eight hours following a commercial motor vehicle (CMV) crash.

• The motor carrier has actual knowledge that the driver used a drug that:
  • Is listed on Schedule l (e.g., marijuana); or
  • Is a non-Schedule I drug that affects the driver’s ability to safely operate a CMV. It is not a violation if the prescribing physician told the driver it would be safe to use while on duty.

Actual knowledge occurs when information is provided to the motor carrier indicating a DOT testing violation. This might be learned through:

• The driver’s admission,
• The carrier’s observed drug or alcohol use,
• A traffic citation for driving a CDL CMV while under the influence of drugs or alcohol,
• Responses from previous employers as a part of the DOT drug and alcohol inquiry, or
• A CDL Drug and Alcohol Clearinghouse query.

When a motor carrier learns of a testing violation on a new hire, it must obtain proof that the driver has completed the return-to-duty process. Otherwise, the motor carrier would have to begin the return-to-duty process or pick up where it left off.

To resume a safety-sensitive function, the driver must complete the following return-to-duty steps in Subpart O of Part 40.

1. Immediate response to DOT violations

When drivers engage in prohibited drug or alcohol behavior, they must be immediately removed from performing all safety-sensitive functions. If on a dispatch, a driver must be told of the test result and instructed to park the vehicle. This notification often involves making arrangements to get the driver home and continue the run with different driver.

The employer must present the driver with a list of substance abuse professionals (SAPs) who have the appropriate credentials and DOT training to perform driver evaluations. The list must be given without a fee and made available to the driver (or driver applicant) whether or not the carrier retains the driver.

If the motor carrier does not have another face-to-face meeting with the driver, this list may be mailed or emailed to the driver.

For drug test results, the medical review officer (MRO) will report the violation to the Clearinghouse. This includes shy bladder scenarios without a valid medical explanation.

Failed alcohol tests (.04 or greater BAC), actual knowledge, and certain refusal to test scenarios are reported by the motor carrier to the Clearinghouse.

2. SAP evaluation

After the SAP list is given to a driver, the motor carrier cannot force a driver to begin the process. Nevertheless, to resume safety-sensitive functions, the driver must seek a face-to-face evaluation from a qualified SAP as a first step.

Payment of the evaluation is not required of the employer. Instead, it is based on labor-management agreements and healthcare benefits.

3. Education and/or treatment

The SAP’s referral to an education and/or treatment program is based on a clinical evaluation of the driver during the face-to-face meeting. The SAP should have a working knowledge of what programs and counselors are available.

The SAP may take into consideration the driver’s ability to pay and insurance coverage. Once a SAP-approved provider has been agreed upon with the driver, the SAP will facilitate the referral and provide the program with the diagnostic determinations that led to the treatment plan. Programs range from outpatient treatment to partial or full in-patient resources.

4. Second SAP evaluation

Once the treatment plan has ended, the SAP will determine if it was a success. This decision is based on information provided by the education and/or treatment program and another face-to-face evaluation with the driver.

This second evaluation will result in one of three determinations:

• Successful completion of the treatment plan. The driver can return to a safety-sensitive function;
• Successful completion of the treatment plan, but additional aftercare or out-patient counseling is required. The driver can return to a safety-sensitive function; or
• Unsuccessful completion of the prescribed treatment plan, and additional follow-up evaluations are necessary. The driver cannot return to a safety-sensitive function.

5. SAP report

If the SAP is satisfied with the driver’s ability to return to driving, the SAP will issue a report to the designated employer representative (DER). This report will list any continuing treatment and education, if required, and the number of DOT follow-up drug and/or alcohol tests required in a given time frame. The driver will be required to have a minimum of six unannounced follow-up tests in the first 12 months following the return to a safety-sensitive function. The SAP may require follow-up testing for up to five years.

For all Part 382 violations occurring since January 6, 2020, the SAP is required to report the successful completion of the evaluation and treatment to the Clearinghouse, provided the driver has designated the SAP in the driver’s personal Clearinghouse account.

6. Negative return-to-duty test(s)

The DER must wait for the go-ahead in the SAP report before sending the driver for the return-to-duty drug and/or alcohol test. All return-to-duty drug tests are performed under direct observation. The motor carrier must report a negative return-to-duty test to the Clearinghouse. In order for the “prohibited” status to be lifted from the driver’s record, both the SAP and motor carrier submission must be entered onto the driver’s record.

Once the Clearinghouse is no longer showing an unresolved testing violation, the driver can return to a safety-sensitive function.

Editor’s Note: Violations occurring prior to January 6, 2020, are not tracked in the Clearinghouse. Instead, the motor carrier would use the SAP report as a green light to perform the return-to-duty test, and once the negative test result is received, the driver can resume a safety-sensitive function.

7. Continued monitoring

After the driver returns to safety-sensitive functions, the motor carrier must carry out the unannounced follow-up tests under direct observation as prescribed in the SAP report. The DER must ensure that the tests do not have any discernible pattern.

The follow-up tests are in addition to any other DOT-required tests (e.g., random, post-accident). For instance, you cannot use a follow-up test as a substitute for a random test or vice versa.

If the driver leaves the motor carrier prior to the completion of the very last follow-up test, the next employer(s) must pick up where the process left off.

When the follow-up program is complete, the motor carrier under whose program the last test was performed must report this to the Clearinghouse. If the violation predates the Clearinghouse, the employer does not report the completed follow-up program to anyone.

Dangers of not acting on DOT violations

If the motor carrier fails to begin or continue with a driver’s DOT return-to-duty process and follow-up testing, it is an acute violation that could cost the company up to $15,876. Allowing this driver to operate a CMV puts the carrier at risk of negligent entrustment claims if there is a crash.

FMCSA testing truck drivers to pause 14-hour on-duty limit

The FMCSA is planning to test the effects of letting commercial truck drivers “pause” their 14-hour on-duty limit by up to 3 hours per day.

The agency is hoping to enlist up to 400 drivers to participate in its three-year “Split Duty Period Pilot Program.” Participants would be allowed to use one off-duty break of between 30 minutes and 3 hours to pause the 14-hour driving window, as long as they take 10 consecutive hours off duty at the end of the day. The pause should enable drivers to reduce fatigue, avoid congestion, reduce the pressure to speed, and be more productive, the FMCSA says.

14-hour window closes fast

Normally, short breaks taken during a driver’s day must be subtracted from the driver’s 14-consecutive-hour window during which driving is allowed.

Under new rules in effect on September 29, 2020, some truck drivers can pause their 14-hour limit with a break of 2 hours or more, but only if they also spend at least 7 hours in a sleeper berth (see below). Under the pilot program, drivers could pause the clock with off-duty time alone, without the need for a sleeper berth. This idea was proposed back in 2019 but didn’t find its way into the recent rule changes because the FMCSA didn’t have enough data to justify it.

Reg changes are a long way off

As required by law, the FMCSA is gathering public input on the proposal until November 2nd. It will then decide whether to implement the program. After the program concludes, the agency will need to report to Congress on its findings before it could proceed with any changes to the hours-of-service regulations.

Participation in the pilot program would be limited to between 200 and 400 commercial driver’s license (CDL) holders from companies of all sizes, with each driver participating for up to one year. Motor carriers that want to enroll in the program will need to apply via an FMCSA website which could be available late this year. Comments on the proposal may be submitted online at www.regulations.gov under docket number FMCSA-2020-0098.

Drivers can pause the 14-hour clock today

Truck drivers who fall under the federal hours-of-service rules can already pause their 14-hour clock with a short rest break, as of September 29, 2020 (see log image). This is known as the “split sleeper-berth” option, and it works like this:

• The driver must take a break of at least 2 consecutive hours sometime during the day.
• The break must be spent off duty or in a sleeper berth (or using a combination of the two).
• The time before and after the break cannot include any driving after the 11th hour of driving or after the 14th hour of time. The break itself can be excluded from the 14-hour calculation (i.e., it “pauses” the clock).
• The driver must have another break of at least 7 consecutive hours spent entirely in a sleeper berth, sometime before or after (but not necessarily connected with) the shorter break.
• The two breaks together must add up to at least 10 hours (for example: 3 7, 2 8, 2 9, 2.5 7.5, etc.).

Key to remember: The FMCSA plans to test the safety of allowing truck drivers to pause their 14-hour clock with a rest break of up to 3 hours, even if they don’t have a sleeper berth. The pilot program could open later this year.

But I can't find a vehicle!

One issue that has come up is new vehicles are not available for delivery before January 1, 2023. This means fleets that operate in California that cannot get a replacement vehicle will be faced with the choice of either retiring their 2007 to 2009 engine vehicles without a replacement or operating in violation as of January 1, 2023.

However, the California Air Resources Board (CARB), the agency that oversees the Truck and Bus program, is aware of the situation and has provided an exemption. If the company has a written contract to purchase a new vehicle to replace a vehicle with a 2007 to 2009 engine in place before September 1, 2023, the existing vehicle can be operated until the replacement is placed in service.

Reporting requirements

To use this exemption, the company must register in CARB’s Truck Regulation Upload, Compliance, and Reporting System (TRUCRS) and report the use of the exemption. This is especially important to California-based companies as vehicle registration is tied to compliance with the Truck and Bus regulations requirements.

Also starting in 2023

As of January 1, 2023, California will be placing roadside emissions monitoring devices (REMD) at locations around the state. These devices check emissions on any vehicle that passes it. If the device determines a vehicle may be a high emitter, the owner will receive a Notice to Submit to Testing. This will require the vehicle to be brought in to a “referee” location where the emissions and emissions components can be inspected.

Key to remember

These Truck and Bus requirements go into effect on January 1, 2023, and only apply to vehicles operating in California.

What is 392.2C?

Section 392.2C is enforcement’s code for “failure to obey traffic control device.” The C stands for control.

The citation appears in the severity table for the Unsafe Driving BASIC (Behavior Analysis and Safety Improvement Category). The violation has been assigned a value of 5 out 10, with 10 being the most severe. The violation is used when calculating both the carrier’s and driver’s Unsafe Driving BASIC scores.

In most instances, the traffic control device is not a signal light or stop or yield sign. Rather, it is the sign that instructs the driver to pull into a weigh station.

Who must pull into a weigh station?

The vehicles that must stop at scales and inspection locations vary from state to state and even from location to location within a state. The “weigh scale ahead” or similar sign should be the driver’s guide.

If the sign reads:

• All vehicles over 16,000 pounds, the driver can safely bypass the scale if under the weight threshold.
• All commercial motor vehicles, the driver should pull in. It is far better to be waived or green lighted through than to be chased down.

Often those who operate commercial vehicles not requiring a commercial driver’s license, such as a large pickup truck or small box truck, mistakenly believe weigh scale inspections are just for larger rigs.

What happens when a driver ignores signage?

If a driver goes past a weigh station without pulling in as directed by a traffic control device, enforcement will pursue and pull over the driver. The officer will then escort the driver back to the weigh station for a roadside inspection.

Even if the driver was honestly confused whether the sign applied to the vehicle, it is too late. And more than likely enforcement’s interest has been piqued. It is highly unlikely the driver will be waived through at this point, and 392.2C will be entered on the roadside inspection report.

Handling violations

CSA’s enforcement model suggests finding the root cause of roadside inspection violations to prevent future occurrences and ultimately improve BASIC scores.

A violation of 392.2C may have one of several root causes, such as:

• Confusion over applicability
• Inattentiveness (missing the sign)
• Running late
• Risky behavior (taking the chance that no one will pursue)
• Concern over other violations discovered once stopped

Whatever the reason, it must be addressed with the driver. Corrective actions range from refresher training to termination. If the driver was trying to avoid enforcement for other reasons (drugs, alcohol, over HOS limits), these other violations need to be addressed accordingly.

Key to remember: Failing to obey a traffic control device will be used in calculation of the CSA Unsafe Driving BASIC scores. Motor carriers should address the root cause of the violation so it does not recur.

FMCSA: Clearly defined

The Federal Motor Carrier Safety Administration (FMCSA) clearly defines a safety-sensitive position.

It is one where the employee is expected to operate a commercial motor vehicle (CMV) requiring a commercial driver’s license (CDL). Only these drivers can be placed in the motor carrier’s DOT drug and alcohol testing program under 49 CFR Part 382.

As a result, a carrier would not classify a forklift operator, driver helper, and other positions as safety sensitive for purposes of testing under Part

What about non-CDL CMV drivers?

A driver who operates an FMCSA-regulated vehicle that does not require a CDL fits within the scope of workplace safety-sensitive duties, but not FMCSA.

For property-carrying vehicles, a non-CDL CMV is one that is:

• 10,001-26,000 pounds inclusive of a towed trailer, and
• Not transporting placardable quantities of hazmat.

For passenger carriers, a non-CDL CMV is designed to transport 9-15 passengers, including the driver, for compensation.

Even though the above vehicles and drivers are subject to the bulk of FMCSA’s safety regulations, the vehicles (and subsequently the drivers) do not qualify for CDL licensing or FMCSA testing.

If the driver happens to hold CDL, it still does not qualify as a safety-sensitive position. Applicability is always based on whether the employee is assigned to operate a CDL CMV.

Are non-CDL CMV drivers subject to any drug and alcohol prohibitions?

Non-CDL CMV drivers are prohibited from operating while impaired under 49 CFR 392.4 and 392.5, but there is no testing mechanism under DOT authority. Testing would be best practice (non-DOT) and managed under the workplace drug program.

Vague definition under OSHA

If a motor carrier mistakenly uses the workplace criteria for its DOT testing, the number and types of positions placed in the random pool far exceed commercial drivers.

For the general workforce, the term “safety sensitive” has been tossed around, but never clearly defined by OSHA (Occupational Safety and Health Administration). Many safety professionals tie the term to OSHA’s General Duty Clause (GDC), which requires that employers provide all workers with a safe and healthful workplace.

Specifically, the GDC requires employers to recognize hazards that cause or likely will cause death or serious physical harm. Any job title that is likely to cause death or serious harm to someone — including the employee, coworkers, or the general public — is usually put on a list of safety-sensitive positions.

The employer must look at each job’s hazards and decide if the position is classified by its organization as safety sensitive. Examples may include:

• Forklift drivers,
• Heavy machinery operators, and
• Crane operators.

Even someone who works as a roofer may be considered a safety-sensitive position because the employee could trip and fall from a high elevation, causing serious personal harm.

Key to remember: When assembling the list of names for your DOT testing program, only include those individuals who are expected to operate a CDL CMV.

Wage overpayment errors can and will occur

Wage overpayment errors happen for many reasons — from clerical mistakes to payroll system snafus.

Regardless of the reason, employees are not necessarily entitled to keep the extra money, and employers need to know their obligations for recouping it.

Under the federal Fair Labor Standards Act (FLSA), employers don’t need an employee’s permission to recoup wage overpayments. The extra money is seen as a loan or a wage advancement to the employee.

Because of this, employers are generally free to recoup the overpayment from the next paycheck — even if such a deduction cuts into the minimum wage or overtime pay due the employee under the FLSA.

State laws, however, may have greater restrictions. For example, New York employers may only make deductions from an employee’s wages for “an overpayment of wages where such overpayment is due to a mathematical or other clerical error by the employer.”

There are also limitations on the timing and duration, frequency, and method and amount of recovery.

The bottom line is, employers should try to avoid getting themselves into an overpayment situation in the first place. Supervisors should closely review their direct reports’ timesheets to catch errors before paychecks are issued

Also, employees should be encouraged to review their pay stubs for accuracy to help catch mistakes sooner rather than later.

If a mistake happens, employers should do their due diligence to communicate with the affected employees and make a reasonable plan to recoup the funds (provided it’s allowed under state law) so as not to cause any unnecessary financial harm to employees.

Key to remember

Wage overpayment errors can and will occur. Employers need to know their obligations under both federal and state laws before recouping money.

Payment options during unpaid FLMA leave

When an employee is on leave under the Family and Medical Leave Act (FMLA), the employer must maintain benefits under the company’s group health plan.

Thus, employees generally must continue paying their share of the health insurance premiums.

But how do employees pay their share of the premiums when FMLA leave is unpaid? Employers may offer three payment options:

1. Pre-pay
2. Pay-as-you-go
3. Catch-up

Employers may allow a combination of these options, such as pre-pay for part of the leave and catch-up for the remainder. Below is a breakdown of the three available payment options.

Option #1: Pre-pay

When unpaid FMLA leave is foreseeable, employers may allow employees to pre-pay their premiums. For example, if an employee is adopting a child and requests several weeks for bonding time but does not have enough vacation to cover the entire absence, an employer could allow the employee to pre-pay his or her premiums for the portion of the leave that would be unpaid.

Employers may not require an employee to pre-pay, so this cannot be the only option offered.

If an employee chooses this option, however, employers may collect premiums on a pre-tax basis – with one exception. If the absence will extend into the next tax year (such as leave from December through January), only the premiums for the current tax year may be pre-paid with pre-tax income. The IRS does not allow employees to defer untaxed income from one year to the next.

In this example, the premiums for January could either be pre-paid with after-tax income, or the employee could elect one of the other options (pay-as-you-go or catch-up).

Option #2: Pay-as-you-go

Under the pay-as-you-go option, employees pay their share of the premiums based upon the agreed terms made between the employer and employee. These payments are usually made on an after-tax basis.

For example, the employee might mail in a personal check every two weeks. If the employee fails to send in the checks, or otherwise fails to make payments using the agreed-upon system, the FMLA does allow employers to drop coverage after giving specified notices of non-payment.

Dropping coverage would likely cause some administrative headaches, and some insurers may refuse to do this because the employee would have to be reinstated to the health plan upon return from FMLA leave.

Therefore, employers may prefer to continue coverage by paying the employee’s share of the premiums, then use the catch-up option once the employee returns to work. Some insurance carriers recommend this as an alternative to dropping coverage.

Option #3: Catch-up

Under the catch-up option, the employer and employee agree that the employee will not pay premiums until he or she returns from leave.

This option might be used when the need for FMLA leave was not foreseeable, such as having to care for a parent who was unexpectedly hospitalized.

To use this option, the employer and employee must agree in advance that:

• The employee elects to continue health coverage while on leave;
• The employer will pay the employee’s share of premiums during the leave; and
• The employee will repay those amounts when he or she returns.

When the employee returns, the employer collects the current premiums plus any catch-up payments, perhaps taking double premiums, until caught up. Contributions under the catch-up option may be taken on a pre-tax basis.

The IRS regulations indicate that, if the employee chooses the pay-as-you-go option, but fails to make the required payments, you may change to the catch-up option even without the employee’s prior agreement.

Key to remember

Employees on unpaid FMLA leave must still pay their share of health insurance premiums by either pre-paying, paying as they go, or making catch-up contributions upon returning to work.