It depends on whether, under the collective bargaining agreement, other types of leave, either paid or unpaid, count as hours worked for purposes of determining eligibility for health insurance in the following year. But if the contract does not count as hours worked other types of leave, neither does the FMLA require the employer to provide such credit for FMLA leave, according to an Opinion Letter of the Wage and Hour Division of the Department of Labor.

The FMLA does require an employer to maintain coverage under any group health plan for the duration of the eligible employee's FMLA leave at the level and under the conditions coverage would have been provided if the employee had been employed continuously for the duration of such leave. But nothing in the law requires an employer to provide health benefits if it does not do so at the time the employee goes out on leave; this is strictly a “maintenance of benefits” provision.

It’s true that taking FMLA leave must not result in the loss of any employment benefit accrued prior to the date on which the leave started, but the FMLA goes on to clarify that an employee back from leave is not entitled to accrue any seniority or employment benefits during leave. In fact, the regulations provide specifically that "if the benefit plan is predicated on a pre-established number of hours worked each year and the employee does not have sufficient hours as a result of taking unpaid FMLA leave, the benefit is lost."

So, if the eligible employee is not entitled to group health insurance coverage prior to the start of FMLA-qualifying leave because he or she has not worked 1500 hours in the previous calendar year as required by the CBA, the employer would not be required to provide health insurance coverage during the FMLA leave. Nor would the be employer required to provide insurance coverage to an employee who does not meet the 1500 hours requirement due to FMLA leave the employee took in the prior year.

Moreover, nothing in the FMLA diminishes an employer's obligation under a collective bargaining agreement to provide greater family or medical leave rights to employees than the rights established under the FMLA, nor may the rights established under the FMLA be diminished by a collective bargaining agreement. Therefore, if the contract provides that other types of leave, paid or unpaid, count as hours worked for purposes of determining eligibility for health insurance in the following year, the FMLA leave of an equivalent type would need to be treated in the same manner.