Offer Cobra to Employee Terminated for Gross Misconduct?
dharzer
6 Posts
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
Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]
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