Employer claims "gross misconduct" exception after being sued for failure to send proper COBRA notices
Posted on 03/17/2015 at 02:34 PM by Russell Samson
Update to COBRA "gross misconduct" post: Since this blog was posted in February 2012, the Affordable Care Act's marketplace provisions for the purchase of health insurance have been implemented. The model notices mentioned in the final paragraph of the aforementioned post are no longer viable.
Both the DOL model general notice (en español) and the DOL model election notice (en español) have been modified to alert recipients of health coverage options that may be available through the Health Insurance Marketplace. In updating a service which I literally use daily, The General Assembly of the State of Iowa maintains: Members of the general public are given free access to a wide variety of information, including the Code of Iowa and the Iowa Administrative Code. As a result of the changes made, the link in the 2012 post to the rule of Iowa Workforce Development defining misconduct for purposes of Iowa's disqualification for unemployment benefits is now defunct. But the text of the rule itself --Rule 871 IAC 24.32(1)(a) hasn't changed.
The federal district court's February 7, 2012 decision in Middlebrooks v. Godwin Corporation, is available here and per curiam affirmance by the Fourth Circuit Court of Appeals, here. What has not changed, since the original post, is the absence of a uniform, generally accepted definition of gross misconduct that would justify as provided in 29 USC § 1163(2) not providing a notice and opportunity to elect to continue to participate in the employer's group health insurance at the individual's cost under COBRA. So employers, before determining that an individual need not get the election notice because the termination is for gross misconduct, I suggest as did Inspector Harry Callahan in another context you've got to ask one question, Do I feel lucky?
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- Russ Samson
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