The Office of General Counsel issued the following opinion on June 5, 2002, representing the position of the New York State Insurance Department.
Re: Employer Sponsored Group Accident & Health Insurance.
Must an employer sponsored group accident & health insurance policy, which requires no employee contribution, cover all employees?
Yes, coverage of all employees is required under those circumstances.
At a legal conference, the inquirer was informed that if an employer purchases a group accident & health insurance policy covering its employees and does not require contributions by the employees, then all employees must be covered, notwithstanding an employees desire to decline the coverage. Subsequently, in response to the inquirers inquiry, several insurers informed the inquirer that employees could decline coverage. The inquirer seeks clarification as to the applicable law.
New York Insurance Law § 4235(c)(1) (McKinney 2000) provides, in pertinent part:
No policy of group accident, group health or group accident and health insurance shall be delivered or issued for delivery in this state unless it conforms to one of the following descriptions: (A) A policy issued to an employer or to a trustee or trustees of a fund established by an employer, which employer or trustee or trustees shall be deemed the policyholder, insuring with or without evidence of insurability satisfactory to the insurer, employees of such employer, and insuring, except as hereinafter provided, all of such employees or all of any class or classes thereof determined by conditions pertaining to the employment or a combination of such conditions and conditions pertaining to the family status of the employee, for insurance coverage on each person insured based upon some plan which will preclude individual selection. . . . The premium for the policy shall be paid by the policyholder, either from the employer's funds, or from funds contributed by the insured employees, or from funds contributed jointly by the employer and employees. If all or part of the premium is to be derived from funds contributed by the insured employees, then such policy must insure not less than fifty percent of such eligible employees or, if less, fifty or more of such employees. . . .
The regulation effecting this requirement, N.Y. Comp. Codes R. & Regs. tit. 11, § 52.18(f) (1999), provides:
Conditions pertaining to employment under section  of the Insurance Law includes geographic situs of employment, earnings, method of compensation, hours, and occupational duties.
The above listing is illustrative and is not intended to be an exhaustive compilation of all valid conditions pertaining to employment.
If an employer purchases a group accident & health insurance policy intending to cover all employees, or a subset thereof based on a valid condition of employment, in which the employer pays the entire premium without any contribution by employees; then pursuant to New York Insurance Law § 4235(c)(1)(A) it is not possible for an employee to opt out of coverage. If, however, there was a requirement for contribution by employees, an opt out would be permitted.
Most employer sponsored group accident & health programs are regulated by the Employee Retirement Income Security Act, 29 U.S.C.A. § 1001 et seq (ERISA). Accordingly, this Department will express no opinion as to the employers obligation vis a vis ERISA with relation to employee opt out.
For further information, you may contact Principal Attorney Alan Rachlin at the New York City office.