Last month, we discussed what happens when an employee is naughty at a holiday party.  If an employee’s behavior is considered “gross misconduct,” is the employee still eligible for COBRA benefits?   It’s a tricky subject, because the U.S. Department of Labor’s notes that, “the term ‘gross misconduct’ is not specifically defined in COBRA or in regulations under COBRA.”

Last month, however, we quoted the Employee Benefits Legal Blog, which stated that an employee’s conduct that is intentional, reckless, or extreme counts as gross misconduct.

The court opinion Shrimpton v. Quest Diagnostics Inc. also provides a helpful two-part litmus test for what constitutes employee gross misconduct: 

• Employee gross misconduct possesses a “substantial nexus” to the workplace, where the conduct involved the employer, a fellow employee or a current or former client. 

• Employee gross misconduct must be intentional, wanton, willful, deliberate or reckless.  Or the misconduct was performed with deliberate indifference to an employer’s interests.

And yet, that litmus test is still pretty broad, isn’t it?  It also begs the question:  how “gross” does gross misconduct have to be?

Here are some examples of truly gross conduct that will help you with determining the most appropriate way for the administration of COBRA benefits: 

• Stealing or destroying property: It happens more than you think.  The U.S. Chamber of Commerce states that 75% of employees steal from their employer. This can include small-scale theft or an employee stealing something virtual files or intellectual property.  Additionally, if an employee willfully and intentionally destroys your company’s property, that counts as gross misconduct.  That can be as simple as intentionally denting the office copier or as serious as setting the building on fire. 

• Violence against a co-worker or a manager: Workplace violence has been decreasing over the past several years, but millions of U.S. workers still experience workplace violence every year, according to the National Center for the Victims of Crime.  For example, the center notes that, “In 2011, 456 persons holding management positions were fatally injured in the workplace.”  Further, “of the non-fatal violent crimes committed against victims who were working or on duty in 2008, 82 percent were simple assaults [and]15 percent were aggravated assaults.”  It’s worth noting that simple assault easily qualifies for gross misconduct. 

• Sexual assault and rape: The National Center for the Victims of Crime states that two percent of all non-fatal violent crime at the workplace was rape or sexual assault.  If an employee sexually assaults a co-worker, manager or a current or former client, then the employee would be guilty of gross misconduct.

Keep in mind that employers should conduct a thorough investigation and gather all of the facts.  It’s important to determine whether an action – such as theft or property damage – was accidental or intentional. Immediately involve law enforcement and physicians in all cases of violence or rape and carefully document the incidents.

Gross misconduct is a delicate subject, and if you’re meticulous about documentation, you’ll increase a positive outcome for your company and current employees.  It will also help answer any questions regarding COBRA eligibility or administration for employees guilty of gross misconduct.

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