Gross Misconduct? HELP ASAP PLEASE!!!!

lnelson · December 2003

Would terming an ee for positive drug test be considered gross misconduct as far as offering COBRA benefits?

Parabeagle · December 2003

I would not consider it gross misconduct. I have only once denied COBRA continuation on the basis of gross misconduct and that was an issue in which the employee stole a large sum of money. I also think most of the lawyers out here would caution you to grant COBRA continuation in almost all circumstances because the courts haven't come down consistently on what constitutes gross misconduct. I generally use a measurement of what would result in a felony charge against the employee if we pressed charges?

I think drug abuse is common enough that it's seldom considered misconduct anymore. Just results in a termination. Even in the military, drug abusers are simply processed for discharge these days and usually don't receive punitive discharges.

HRsage · December 2003

[font size="1" color="#FF0000"]LAST EDITED ON 12-22-03 AT 05:51PM (CST)[/font][br][br]I agree with Beagle. I wouldn't consider it gross misconduct if it was just for a positive drug test.
You might be able to consider it gross misconduct if the drug use involved severe safety violations in the workplace, or if you had gross misconduct defined in your policies and drug use was one of the definitions- but that's probably a stretch.

And that doesn't mean it still couldn't get challenged in court. Good luck.

this website had a little info back in October on Gross Misconduct. Here is the link or go to HR tip of the week from the menu (HR Headlines) on the left of your screen:

[url]http://www.hrhero.com/headlines/102403/tip-cobra.shtml?menu[/url]

FHR · December 2003

I agree with the above. But why the HELP ASAP PLEASE! Is there something more going on?
Failing a drug test is not gross misconduct. It is not stealing or causing the company harm, unless there is more to the story?
Cristina

FHR · December 2003

And one more, Why would you deny them COBRA?
Cristina

irenesmsaclaims · December 2003

If I read your question correctly, COBRA can be denied if employment is terminated due to gross misconduct, and the other posters are correct. The law is rather vague, and there seems to be little case law to look at. Basically, it would be something for which a person could be arrested on a serious charge. The only one I ever did not offer COBRA was an employee stealing a car!

marc · December 2003

One of our former President's and a Supreme Court judge nominee both admitted to drug use, although one apparently 'did not inhale.' We do not get as excited about it as we used to. That said, there are plenty of circumstances where the use of drugs in the workplace could go several steps toward the gross misconduct label.

For instance, using or selling close to a public school. Parabeagle indicated the use of a felony test as a hurdle to jump. That makes some sense to me. Also, some companies just want to send a strong message to the work force about not tolerating certain things from their ees. If that is the case, there are plenty of other ways to send messages.

Specific circumstances would dictate how we would handle it, not just a general drug use instance.

Cinderella · December 2003

I don't know the answer to this question. The only thing I recall ever denying COBRA for was a discharge due to proven sexual harassment. I beleive a discharge that occurred for selling marijuana at work during work hours also resulted in denying COBRA but I don't recall perfectly...just that there was some debate about it in my dept.
Cinderella

sonny · December 2003

Nice to see you Cinderella. . where the heck you been? Don't suppose you saw Gillian in your travels?

Cinderella · December 2003

Thanks Sonny. Can't say I've seen Gillian around. I've been here, just lurking instead of posting...but lately I have some time so I figured I would say hi!

Cinderella

martman99 · December 2003

Fully agree with the responses that you should offer COBRA continuation. Regardless of the the cause for termination, your potential liability in denying COBRA doesn't outweigh the benefit of at least extending COBRA benefits to the EE. Further, should the drug test be challenged; ie. false positive or simply human error, you are in the position of reinstatement, potentially.

JM in ATL · December 2003

I don't know what the size of your company is, but if you are adamant about not offering COBRA, keep in mind that if you have under 20 ee's you don't have to.

But I too agree, a positive drug test does not constitue gross misconduct.

While the Federal Government has not defined it and has left it to employers to decide what they consider gross misconduct, they often favor the ee when it comes to determining whether or not COBRA benefits should have been denied.

I would offer it, but also keep this in mind too, if the ee defualts in payments by his/her 30 day grace period, you can cancel coverage immediately without having to reinstate.

JM

Tish · December 2003

I agree with JM.

Is this EE eligable for unemployment? if so spend your time fighting that, a battle you are much more apt to win.

lnelson · December 2003

Thank you all for your responses COBRA benefits have been offered to this ee. I was just unclear what constitutes Gross Misconduct other than stealing from company.

Happy Holidays!
Lisa

Gross Misconduct? HELP ASAP PLEASE!!!!

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