One of the great mysteries in the employment law arena is what is "gross misconduct" under the Consolidated Omnibus Budget Reconciliation Act (COBRA)

A provocative article published in the latest "The Labor Lawyer" (a publication of the American Bar Association)  answers that question by providing a fairly thorough summary of how courts have analyzed this issue.

But the article goes further by providing suggested strategies for employers to consider to avoid litigation.

Unfortunately, I haven’t been able to locate the article (which also won the ABA Labor & Employment Student Writing Contest) online yet. But the author, Erin-Ann Jurrens-Sudkamp, provides some of the suggested approaches.

  • Employers should always make a good faith effort to comply with COBRA;
  • Employers should write and apply their own gross misconduct definition;
  • Employers should make sure that their definition is consistent with company needs, is narrowly tailored, and addresses each of the issues referred to in the paper.
  • Employers should put employees on notice about the definition and the consequences of committing gross misconduct.
  • Employers should consider operating its own appeals process for employees to challenge COBRA coverage denials.

For employers (and attorneys) that are struggling with this topic, this article provides an in-depth look at the issue and is well worth hunting for.