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Health plans subject to COBRA must offer COBRA continuation coverage when certain events occur that trigger a participant to lose coverage. One of those qualifying events is the termination of the employee’s employment, as long as the termination is not the result of the employee’s gross misconduct. If the employee is terminated for gross misconduct, the health plan does not need to offer COBRA continuation coverage.
It’s not crystal clear, however, what types of actions rise to the level of “gross misconduct,” and COBRA laws and regulations do not provide any additional insight. Recently, a district court in Maryland found that a single instance of negligence by a healthcare worker that did not cause any physical harm did not rise to gross misconduct, but courts throughout the nation do not subscribe to any one uniform definition of gross misconduct. Because of this lack of clarity, health plans must be careful when denying COBRA coverage based on this exception. If a health plan fails to offer COBRA coverage when it should have, a court may order the plan to offer retroactive coverage as well as penalize the plan up to $110 per day.