Do we have to pay health insurance opt-out bonus during FMLA leave?

Q. Our company offers a health insurance opt-out incentive, paying employees $400 a month if they use their spouses’ insurance plans. We now have an employee going out on FMLA maternity leave. Do we have to keep paying her $400 per month? — J.T., Missouri

Yes, the company will have to keep paying the $400 incentive if: (1) the employee continues to opt-out of the insurance plan; and (2) your company continues to pay the $400 per month incentive to employees who take non-FMLA leaves of absence.

The FMLA requires employers to treat employees in a fair and consistent manner, regardless of the need for FMLA leave. Stated differently, unless this employee has now enrolled in the company insurance plan, she is entitled to the same $400 opt-out benefit—as well as any other employee benefits—provided by employer-established policies during her period of FMLA maternity leave.