Offer Cobra to Employee Terminated for Gross Misconduct?

We recently terminated an employee for gross misconduct, (failure to call in/show up for a week-company policy is three days or terminated-allowed extension due to difficulty of filling position). His mother now calls and is asking for a Cobra continuation for her son as he is suffering mental problems. I stated we weren't obligated to provide the continuation as he was terminated for gross misconduct. I reminded her that I had contacted her (his emergency contact on employment application) to see if she could find out what was going on and advise us of his status. She never called me back. I reminded her of this also. I told her I would speak to the owner, who now says he will think about it. This employee called me last week asking about a day he thought he hadn't been paid for (over a week after he would have been paid for it). I said I would check into it, he stated he really needed the money right away. (This was on Friday afternoon, ten minutes before I am scheduled to leave for a long weekend.) I told him I was unable to take care of it then, but would look into it on Monday. He has since been paid for the day. He even drove to our office to pick up the check. Now, must we offer the COBRA in light of the gross misconduct, and the employee able to pick up the check? I know there are always legal issues involved with COBRA, so I don't want to step on anyone's toes and end up in court. Does anyone have any advice? (Note: we recently terminated an employee for the same thing-the unemployment office stated she would not receive benefits as this was considered gross misconduct (State of Maryland). Can anyone offer some advice??

Comments

  • 5 Comments sorted by Votes Date Added
  • My opinion is that misconduct as defined by UI for not receiving benefits would NOT be the same for the Cobra situation. The operative word here is "gross" in relation to the conduct (or misconduct). Gross misconduct is not fully defined in the COBRA regs and I would not view termination for absenteeism as "gross". If there was theft or weapons involved then maybe I would then apply the "gross". You may want to reconsider offering the COBRA.
  • I'm going to second Terry's answer as well as add this. No matter what we fired someone for we always offered COBRA. You would spend more going to court arguing over what was "gross negligence" and what was not than you will giving him COBRA. If you lose, you will probably wind up paying all of his medical bills incurred while you were fighting about it because the insurance company won't want to take him back after so long a period of time. If he's that desparate for money, he'll probably lapse paying his premiums soon. And last but not least, in my opinion, not showing up for work does not constitute "gross negligence."

    Margaret Morford
    theHRedge
    615-371-8200
    [email]mmorford@mleesmith.com[/email]
    [url]http://www.thehredge.net[/url]
  • I agree with the previous posts. I have always considered gross misconduct to entail behavior that rises to the level of something really bad (e.g., something that might have legal repercussions if pressed). I would not consider termination for attendance as gross misconduct.
  • Just a few guidlines I thought you might find helpful...

    Overall, the courts have taken the lead in defining gross misconduct. In most cases, they have looked at provisions in state unemployment compensation law for guidance. To that end, the employer must analyze the applicable legislative, regulatory and legal guidance, and then determine what type of behavior is gross misconduct. In doing so, the employer and its legal counsel should consider at least the following five issues:

    Was the conduct illegal?
    Was the conduct disruptive or harmful to the employer's business or the workplace?
    Was it a first offense?
    Was the conduct condoned or tolerated by the employer?
    Are there mitigating circumstances?

    I do not think that no calls- no shows would be considered "gross misconduct"
    Good Luck
  • We are offering the cobra continuation on everyone's advice. Thank you for your help!!
Sign In or Register to comment.