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A Service of OnQue Technologies, Inc. |
| Employee Living in Car Arrested; Fails to
Return to Work |
March 6, 2006
By Scott Haines, President
OnQue Technologies, Inc.
Santa Rosa, CA |
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The
following is an excerpt from Questions and Answers from the COBRA Help Desk-Part
II.
Employer: We had an employee who was in
enrolled in our company health plan. About two weeks ago, the police came in
and arrested her for theft (not from our company) and she was taken out in
handcuffs. We have not heard from her and assume she is in jail. We want to
terminate her employment, but I don't know how to proceed. Here are my
questions:
If we terminate her employment due to gross
misconduct, is she entitled to COBRA? If so, what do I do about sending her the
COBRA notifications? The address I have on file is apparently invalid—I
just learned that she was living in her car right before her arrest. I know
this sounds weird, but it's true, and I need to know what to do.
OnQue: It is true that COBRA need not be
offered to an employee who is terminated due to gross misconduct. However,
denials of continuation coverage on such grounds have been successfully
challenged in the courts. At the heart of the matter is whether your company
has a clearly defined policy that enumerates the acts that constitute gross
misconduct, and whether you can demonstrate that the employee was aware of that
policy. Because denial of her right to continued health coverage is a
potentially dangerous matter for your company, I urge you to consult with an
attorney before taking such action.
If you process this case as an involuntary
termination of employment (not due to gross misconduct), then you must make
every reasonable attempt to deliver the COBRA qualifying event and election
notice to the former employee. According to the law, the notice must be
provided in a "good faith manner that is reasonably calculated to ensure actual
receipt of the material." In this case, acting in "good faith" may mean sending
the notice more than once. Following are a few pointers:
- It is a mistake to assume that a
notice delivered to the former employee's last known address will not reach
her; she may be retrieving her mail from that location or perhaps it is being
forwarded to another location that is accessible to her. It would be wise to
begin by sending the notice to the address you have on file as soon as
possible.
- Contact the appropriate
authorities to determine if they can provide you with her current mailing
address.
- Ask her coworkers if they know
where she currently resides or how she receives mail if she is still
homeless.
- Protect your company (and
yourself) by carefully documenting all of your efforts to identify her place of
residence and to deliver the COBRA notice in a timely manner.
It is also good practice to send the notice via
U.S. Postal Service first-class mail with a Certificate of Mailing, because the
certificate proves when and to whom the notice was mailed. |
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| Related COBRA Tips |
| The Gross Misconduct Exception |
| Are You Using
The Safest Method To Deliver COBRA Notices? |
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This information is provided by
OnQue Technologies, Inc. for educational purposes only and does not constitute
legal advice. If legal advice or other professional assistance is required, the
services of a competent professional should be sought.
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