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What is the definition of "involuntary termination" for COBRA eligibility?

For purposes of determining COBRA eligibility, IRS Notice 2009-27, I.R.B. 2009-16, updated April 20, 2009, defines “involuntary termination” as "a severance from employment due to the independent exercise of the unilateral authority of the employer to terminate the employment, other than due to the employee's implicit or explicit request, where the employee was willing and able to continue performing services. An employee-initiated termination from employment constitutes an involuntary termination if the termination is for good reason due to employer action that causes a material negative change in the employment relationship for the employee".

For example, a reduction in hours is not an involuntary termination, but an employee's voluntary termination in response to an employer-imposed reduction in hours may be one if the reduction in hours is a material negative change in the employment relationship.

The following circumstances constitute an involuntary termination:

  • a lay-off period with a right of recall or a temporary furlough period
  • an employer's action to end an individual's employment while the individual is absent from work due to illness or disability; retirement, if the facts and circumstances indicate that, absent retirement, the employer would have terminated the employee's services, and the employee had knowledge he or she would be terminated
  • involuntary termination for cause except due to gross misconduct; resignation as the result of a material change in the geographic location of employment; a lockout initiated by the employer
  • a buy-out where the employer indicates that, after the severance package offer period, a certain number of remaining employees in the employee's group will be terminated. The guidance states that involuntary termination does not include the death of an employee or absence from work due to illness or disability.

COBRA alternative insurance is available regardless of the cause of termination from group insurance and are a likely choice when an involuntary termination does not occur.

revised 4/21/09

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