cobra and misconduct termination

[alexa]

Does anyone exlcude terminees who terminatate for misconduct from COBRA coverage?

what do you classify as gross misconduct?

[oriecat]

We have never not offered COBRA for gross misconduct. The DOL (or is it the IRS?) has said they will not define 'gross misconduct' for COBRA purposes, so we think it's just safer not to go there...

[papogi]

As far as I know, only outright and provable theft has been consistently upheld in court as "misconduct." Safer to offer COBRA in all cases.

[Kirk Maldonado]

There are a number of cases holding what is and what isn't "gross misconduct." In many cases, it is very clear whether something qualifies or does not.

The cost of providing COBRA could prove to be very expensive in some cases. I had a client with a former employee run up a $1,000,000 hospital bill in less than six months.

My recommendation is that you retain competent ERISA counsel to advise on this matter.

[Guest blackacre]

I represent employees of an employer who defines "gross misconduct" for denial of COBRA purposes as anything for which an employee can be disciplined, basically. I have registered my extreme dismay at this and plan to take further action as soon as we have the time to focus on that problem. Do any of you who have responded have any useful citations for the definitions of "gross misconduct"? Thank you for any help you can offer.

[papogi]

The below is taken from a legal firm's website:

"Generally, courts have found gross misconduct to be that which is intentional, willful, wanton, reckless or in deliberate indifference to an employer's interests. See Collins v. Aggrek Inc., 884 F. Supp. 450 (D.Utah 1995)(operating a company vehicle while under the influence of alcohol was gross misconduct); Adkins v. United International Investigative Services Inc., No. C 91-0087 BAC, 1993 WL 345186 (N.D.Cal. March 27, 1993)(security guard's desertion of post and falsification of duty log in order to generate additional paycheck was gross misconduct); cf. Zickafoose v. UB Services Inc., et. al., No. Civ. A. 3:97-0980, 1998 WL 774332 (S.D.W.Va. Nov. 2, 1998)(employee's assault on a co-worker, which occurred outside of the workplace, was gross misconduct). But see Paris v. F. Korbel & Brothers, Inc., 751 F. Supp. 834 (N.D.Cal. 1990)(employee's breach of a company confidence was not gross misconduct)."

Also, see cite 27 at this link:

http://www.hr-esource.com/index.asp?rightf...Chapter_44.html

This would indicate that even though something constitutes disciplinary action, gross misconduct has not necessarily occurred.