Cobra - gross midconduct

System

We recently sent an employee in for a drug/alcohol test (reasonable suspicision) and he tested positive for alcohol. He has already been suspended for this and going throught treatment and failed to comply with the terms of treatment. Wondering if this is considered gross misconduct and if it is do we need to offer this employee COBRA (State - MN)

Any advice on this would be greatly appreciated.

Spoden - MN

Margaret Morford

Spoden,

I have never denied an employee COBRA because of gross misconduct and I have asked every lawyer I know whether they have ever had a client do it. They all say that it isn't worth the hassle. You'll wind up spending more in court defending your decision of gross misconduct than it will cost you in claims over and above the COBRA premium. I recommend saving yourself some hassle and just send him the paper work.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Theresa Gegen TX

Good advice, Margaret.

I have actually had a client deny COBRA for gross misconduct, then had it upheld when it was challanged (but when it was over, after all the hassle and cost, the client wished they had just given the COBRA notice to the employee.)

In the case where it was upheld, the employee was grossly negligent in causing about $250,000 worth of damage to the employer's property. Notice, the employee wasn't just negligent, the employee failed to follow any of the safety instructions that he had been given (he disregarded the rules). Mere negligence would not be enough.

The main problem in defending any case of gross misconduct is that there is very little guidance in the law as to what satisfies the standard.

Good Luck.

System

Thank you Margaret and Theresa for the information. I certianly will take your advice.

Thanks again

Spoden