Is This Gross Misconduct That Excuses COBRA?


As many of you know, an employer does not have to offer COBRA health insurance coverage to an employee who’s discharged for “gross misconduct.” Unfortunately, COBRA does not define “gross misconduct,” and courts are divided on what it means. Can you guess if the following facts comprise gross misconduct?

Nurse N’s primary duties include giving injections, supplying medications, and assisting with examinations at a family care doctor’s office. Late one afternoon, a patient arrived to receive a Toradol injection, an anti-inflammatory medication. Nurse N accompanied the patient to a treatment room and took the patient’s vital signs. The patient reported a migraine and had high blood pressure.

After giving the injection, Nurse N asked the patient to wait in the office for 30 minutes to ensure that the patient didn’t experience any adverse reaction. Nurse N took this precaution because the patient had never taken Toradol before. Nurse N then brought the patient’s husband into the treatment room to wait with her. Nurse N then resumed her other duties.

At 5:31 p.m., Nurse N left for the evening, leaving the patient and her husband alone in the empty office. An hour later, Nurse N received a text message that the patient and her husband were still in the office. Nurse N returned to the office within minutes, but the patient had left by then.

The next day, Nurse N was asked to submit an incident report. It was then discovered that Nurse N also failed to notify the doctor about the patient’s high blood pressure before giving the injection.

Are Nurse N’s actions, taken together, considered “gross misconduct” for COBRA purposes?

No says the U.S. District Court for the District of Maryland. New v. Family Health Care, No. 8:17-cv-02379, slip op. at 12 (D. Md. July 1, 2019). On a motion for summary judgment, the court observes that “‘gross misconduct’ amounts to more than a single event of negligence.” Id. Because there is no evidence that Nurse N had been similarly derelict in the past, her actions do not rise to the level of gross misconduct.

This case is a good reminder of the high degree of misconduct needed to relieve an employer of the obligation to offer COBRA coverage.

This blog was written by Paolo Pasicolan at Miles & Stockbridge.

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