Responsibility for notifying employees of their COBRA rights falls on the employer and the health plan administrator. The employer must notify the administrator within thirty days of an employee's separation. The administrator then has fourteen days to notify the employee of the right to continue coverage. UNITED STATES DISTRICT COURT, SOUTH CAROLINA, 1997.

   COBRA stands for Consolidated Omnibus Budget Reconciliation Act of 1985. It expanded upon the rights given to employees with respect to their health plan coverage by the Employee Retirement Income Security Act of 1974 (ERISA).

   In a case recently decided by the U.S. District Court for the District of South Carolina, a nurse's aide filed suit against her former employer. In the suit she claimed she had been denied her rights under COBRA, in that she was not advised of her right to continue her health coverage after being terminated from her employment.

   She last reported to work on October 23. She was fired effective October 28. She entered the hospital on October 29 and remained until November 11. Her health coverage through her employer expired on the date of her termination. She had not taken steps to continue her health coverage on an individual basis, and thus her hospital stay was not covered by the insurance, through the employer or individually.

   The aide filed suit against her employer, claiming that had she been advised of her COBRA rights, she would have elected to continue her coverage and would have covered herself for her hospital stay.

   She also alleged in her suit her termination was an act of discrimination outlawed by ERISA.

   The court ruled the employer and the benefit plan administrator had fully complied with their legal responsibilities under COBRA. The aide's principal argument was that she never received notice of her COBRA rights. However, the court ruled her receipt or non-receipt of notice was immaterial.

   The employer fulfills its legal duty under COBRA by notifying the plan administrator within the required thirty-day time period. The plan administrator fulfills its legal duty by making a good-faith effort to notify the employee, that is, by being able to document that it sent a letter explaining the employee's right to elect to continue coverage to the employee at the employee’s last known address, within the fourteen-day window provided by law for the administrator to take such action.

   If the employer's and the plan administrator's business records demonstrate that the necessary notices were sent out as required by law, as in this case, the employee is responsible for medical bills incurred after the health insurance runs out and has no grounds to sue the former employer.

   In general it is illegal for an employer to take adverse action against an employee because the employee is using or will be using employer-paid health benefits. In this case, however, the employer was able to show it terminated the employee for two consecutive days unreported and unexcused absence. In retrospect it was true the employee was having medical problems which were about to put her in the hospital. However, the employee was not able to prove the employer knew of her medical problems before-the-fact. There was no proof the employer was guilty of discrimination. Roberts vs. Health, 963 F. Supp. 512 (D.S.C., 1997).