A recent Employers Council article outlined the definition of gross misconduct under the new COBRA subsidies under the American Rescue Plan Act (ARPA). ARPA provides a temporary six-month COBRA subsidy that allows qualified individuals to stay on their employer-sponsored health plan at no cost to the individual, as explained in the article. This subsidy is available for any employee who was terminated since 2018 and is still receiving COBRA coverage.
In addition to gross misconduct, another reason an employee would not receive a subsidy is if the termination were voluntary. This raises the next question: what is voluntary? This is a question that will require thought in certain circumstances. For example, suppose an employee quits because the employer was consolidating operations due to the pandemic, and the employee is unwilling to move from Utah to Indiana. In that case, that is constructive discharge, and the employee would be entitled to the subsidy. A discharge is constructive when the employee would have to remain in a situation that is not tolerable to remain employed. Another example would be an employee whose hours were significantly reduced and could no longer afford to keep the job.
A more difficult question is when an employee no longer comes into the office due to significant health concerns during the pandemic due to their own health or the health of a family member and is discharged as a result. This will be heavily dependent on the facts, and Employers Council can help with questions like these.