Terminating the Employment Relationship

A dependent of an employee is no longer considered a dependent (Notification to former dependent); and Family member(s) of an employee enrolls in Medicare (notification to family member). 3. COBRA C OVERAGE P ERIOD COBRA generally provides a continuation of benefits for up to 18 months for qualifying events due to employment termination or reduction of hours of work. However, a particular plan may provide longer periods of coverage beyond those required by COBRA. Certain qualifying events, or a second qualifying event during an initial coverage period, may entitle beneficiaries to an extension of up to an additional 18 months.

Cal-COBRA is also available to extend continuation coverage that has ended under the federal COBRA program, for up to an additional 18 months.

4. COBRA P AYMENT O BLIGATIONS The only obligation belonging to employers under COBRA is providing the employee with notice of his right to obtain continuing health benefits coverage. It is the employee’s responsibility to apply for COBRA continuation coverage and pay COBRA premiums. Nothing prohibits an employer from agreeing to pay the employee’s COBRA costs (e.g., under settlement agreement).

5. D ENIAL OF B ENEFITS B ASED ON G ROSS M ISCONDUCT

a. Defining Gross Misconduct An employee fired for "gross misconduct" is not entitled to COBRA benefits. 410 Keep in mind that if an employer denies COBRA coverage based on what it perceives as gross misconduct, and the ex-employee challenges the denial, the employer will have the burden to prove that the employee engaged in gross misconduct resulting in his or her termination. 411 There are no regulations defining “gross misconduct” under COBRA, and case law addressing the subject is sparse. In general, courts have found that mere “negligence or incompetence” does not rise to the level of gross misconduct. 412 Courts have also refused to find gross misconduct where the misconduct was inadvertent or sporadic. For example, a forgetful employee who occasionally neglects an employer's instructions has not likely engaged in gross misconduct. 413 Courts have found gross misconduct for more serious, intentional misconduct. Courts have found gross misconduct in the following cases: where a drunken employee crashed an employer- provided car 414 ; where an employee called a co-worker a racial slur and threw an apple at her 415 ; where an employee battered a co-worker, placing her in the hospital 416 ; where an employee stole from her employer 417 ; and where an employee repeatedly and persistently refused to follow the instructions of his supervisor. 418

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 129