371 / When must an election to receive COBRA continuation coverage be made?

The period during which a qualified beneficiary may elect continuation coverage runs from the date when the qualified beneficiary’s coverage terminates under the plan by reason of a qualifying event until 60 days after the later of: 1) the date when the coverage terminates; or 2) the date when notice is provided by a plan administrator to any qualified beneficiary of the right to continued coverage.¹

A COBRA continuation coverage election is considered made on the date it is sent to a plan administrator. If an election is made at any time during this period, the continuation coverage is provided from the date when coverage is lost.²

Where a former employee became incapacitated 10 days after resigning without making a continuation coverage election, the 60-day election period was tolled. Thus, a continuation coverage election made by the former employee’s temporary administrator approximately 70 days after the resignation was found to be timely.³

Each qualified beneficiary must be offered the opportunity to make an independent election to receive COBRA continuation coverage. If a qualified beneficiary who is either a covered employee or his or her spouse makes an election that does not specify for whom the election is being made, regulations provide that the election will be deemed to include an election for all other qualified beneficiaries.⁴

If a qualified beneficiary waives the right to COBRA coverage but subsequently revokes the waiver prior to the end of the election period, the employer must provide the qualified beneficiary with prospective coverage, but not for the period between the waiver and the revocation. A waiver or revocation of a waiver is considered to have been made on the date it is sent.⁵

An employer may not withhold any compensation or other benefits to which a qualified beneficiary is entitled to coerce the qualified beneficiary into a decision concerning COBRA continuation coverage.⁶

Second COBRA Election Period

The Trade Act of 2002 added a second 60-day COBRA election period for individuals eligible under the Trade Adjustment Assistance (“TAA”) program if the individuals did not elect COBRA coverage during their initial election period. The second election period begins on the first day of the month in which an individual becomes TAA eligible, but no election can be made more than six months after an initial TAA-related loss of coverage. Any election during a second election period is retroactive to the first day of the second election period.⁷

The second opportunity to elect COBRA continuation coverage applies to individuals who are eligible for trade adjustment assistance (TAA) or alternative trade adjustment assistance (ATAA) and who did not elect COBRA during the general election period. This additional, second election period is measured 60 days from the first day of the month in which an individual is determined TAA-eligible. For example, if an individual’s general election period runs out and he or she is determined TAA-eligible 61 days after separating from employment, at the beginning of the month, he or she would have approximately 60 more days to elect COBRA. However, if this same individual is not determined TAA-eligible until the end of the month, the 60 days are still measured from the first of the month, in effect giving the individual about 30 days. Additionally, the Trade Act of 2002 added another limit on the second election period. A COBRA election must be made not later than six months after the date of the TAA-related loss of coverage. COBRA coverage chosen during the second election period typically begins on the first day of that period.⁸

TAA recipients were eligible for COBRA coverage extensions for as long as they had TAA eligibility or until January 1, 2014. PBGC payees were eligible for COBRA coverage extensions until January 1, 2014. If the payee passed away, their spouse or dependents could receive an additional 24 months of COBRA or until January 1, 2014.⁹