Answers to two tricky HR questions: Dealing with HSAs and military leave

Our team of experts fields real-life, everyday questions from HR managers and gives practical answers that can be applied by any HR pro in the same situation.

What happens to a Health Savings Account when there’s a divorce?
Question:
Our company is considering the use of Health Savings Accounts (HSAs), but one question concerns us. Suppose an employee with an HSA gets divorced. Is the employer obligated to divide the proceeds of the HSA between the ex-spouses? If not, exactly what role does the employer play in administering the account in case of divorce?
Answer:
The quick answer is “none,” says Edward Fensholt, an attorney with Palmer & Cay. HSAs are considered “assets” under the law, just like a car, house or savings account. If you think of an HSA that way, you can see that dividing it up in case of a divorce isn’t the employer’s responsibility. It’s decided in the divorce settlement.
Payment for those on military leave?
Question:
Some of our employees on unpaid military leave occasionally check their office e-mail and answer it. That, as far as we can tell, means they’re working at least part-time. Do we have to make arrangements to pay them to stay in compliance with military-leave regulations?
Answer:
They probably should be paid, but one question you’ll have to answer is if they’re classified as exempt or nonexempt, advises Jonathan Segal, a partner with the law firm of Wolf Block Schorr & Solis-Cohen.
If they’re exempt, the law says you’re obligated to pay them for a full day for any day they put time in. If nonexempt, they can be paid for just the time they spend checking and answering their email.
Some companies switch active-duty employees to nonexempt so that the company is obligated to pay the person only for the hours “worked.”