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COBRA Coverage and Gross Misconduct

Posted on: August 8th, 2012 by Kristen Marie

doctor filling out formA question that we hear often from visitors to the site is about exactly what qualifies as gross misconduct and would therefore disqualify them from being able to enroll in COBRA insurance. Employers in some cases will try to deny COBRA coverage to employees due to misconduct, but the law is very strict in terms of what actually qualifies as gross misconduct as opposed to simple misconduct.

Let’s start with the legal definition of gross misconduct: Acts of gross misconduct are intentional, wanton, willful, deliberate, reckless, or in deliberate indifference to an employer’s interest. Unfortunately this is still pretty broad. So let’s look a little but deeper. In most court cases, gross misconduct must also be objectionable and intentional. It can not be a mistake or negligence. This means that simple mistakes can not be categorized as gross misconduct.

Additionally, based on past cases we can also include the following items as gross misconduct that would make someone ineligible for COBRA insurance:

  • Disregard for the overall safety and security of others
  • Purposeful acts of hostility and violence
  • Any attempt to financially defraud a company
  • Serious insubordination
  • Dishonesty and misrepresentation

In addition, criminal acts are almost always considered gross misconduct under the law.  This would include violence, sexual misconduct or harassment, theft, embezzlement, and any other criminal charge that the company files against an employee.  Moreover, behavioral gross misconduct can qualify which may include sexual harassment and discrimination of any kind.

Finally to help solidify your understanding of gross misconduct, let’s look at some examples of things that wouldn’t be considered gross misconduct.

  • Poor performance
  • Minor errors in judgment or negligence
  • Being frequently late
  • Miscommunication
  • Frequent absences
  • Frequent mistakes
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