Human Resource Blog

Medical Condition Caused Poor Judgement, and Got Fired — FMLA, ADA

I have been in contact with my superior regarding my stress with a family problem. I requested and was granted time off to deal with the situation. I was seeing my doctor and a therapist to correct my situation. At one point in an effort to help my daughter-in-law I authorized several transactions at my bank (I am manager of branch.) I informed my staff of these transactions. Immediately following this, I requested leave under the FMLA to better deal with my family situation. All along this time frame (40 plus days) my supervisor was aware of the stress and medical care I was receiving. On my first day back to work (was off only 2 weeks) I was called to supervisors office and was fired immediately that day for what they call “self dealing” (opening/closing accounts of family members.) This was totally out of character for me, and was done due to the emotional stress I was under, in an attempt to help my daughter-in-law. I wasn’t trying to hide anything I was doing, and made my staff aware of what was going on.
They are claiming company policy for the firing as stated in Corporate policy I signed when hired.
My question, if you read this far is: Seeing that I was under medical care, which the doctors will attest, I was under extreme stress, and not able to think rationally. (which is why I requested time off under FMLA) to better myself.
I would have expected they would have taken this medical situation under consideration and perhaps put me on some sort of probation, but they just fired me instead. Is there anything that relates to FMLA, or medical care that protects me in any way? Do I have any recourse under these circumstances?
Thank you in advance for your help!
D.S.

Thank you for posting such an interesting question! It’s impossible to determine the outcome of this situation without more details, but there are a number of issues that need to be discussed.

Stress vs. a Serious Health Condition

 FMLA grants employees up to 12 weeks of unpaid leave to address their own “serious health condition” or that of an immediate family member (spouse, son or daughter, or parent.)

Stress is usually not a “serious health condition” – it’s a part of everyday life. If everyone who is under stress was granted FMLA leave, most employees would be on leave most of the time.

This employee alludes to a “family problem” but doesn’t specify why he took FMLA. “Serious health conditions” for family members would include a wife’s heart attack, or a teenaged son’s cancer. For the employee, a serious health condition might be depression, alcoholism or surgery. It’s not clear how a wife’s heart attack, or the employee’s own appendectomy, would cause him to make poor business decisions.

To put it another way, would you want to invest in a company where the managers made bad business decisions, but couldn’t be fired because they were “under stress”? Probably not…and neither would anyone else.  

FMLA Leave vs. At Work

 

 An employee is either on unpaid FMLA leave, or he is at work. There is no provision under FMLA to excuse poor performance by an employee at work. Nor is there a “grace period” before or after FMLA when the employee doesn’t have to be competent in his or her job. By returning to work, the employee asserts that he is fit to resume his duties. By allowing him to work, the employer accepts that assertion.

This is best illustrated by looking at an example. Suppose Tom works in a warehouse loading 50 lb.  boxes onto trucks all day. Tom hurts his back and must be away from work on FMLA for 10 weeks. When he returns, Tom won’t lift heavy boxes. Both Tom and his doctor insist that Tom is fit for work, but Tom is not loading any boxes onto trucks. Tom’s employer would be justified in reprimanding or firing him, because he is not performing his basic job duties.

To put it another way, the employer is paying the worker, and has the right to expect a certain level of performance.

Disability vs. FMLA

The employee seems to be arguing that he had or has an ongoing disability that prevents him from performing some of the duties of his job. Under the ADA, an employee with a disability can request that the employer make a “reasonable accommodation” for that disability. (The disability must be certified by a medical professional.)

The employee must generally initiate this conversation by requesting an accommodation. Being reassigned to a position with less responsibility for a period of time (at a lower salary) might be a reasonable accommodation. But allowing poor performance in the current job is not a reasonable accommodation.

Under both FMLA and ADA, if an employee suffers a disability and is unable to perform an essential job function, that employee can be terminated. In our example above, if Tom can lift only 3 lbs. but is otherwise healthy, the employer is under no obligation to give Tom his job back.

Most bankers would argue that making sound business decisions that protect the bank, and following company policy, are essential functions of a branch manager’s job. So, the bank is not required to employ a manager who can’t perform this duty.

Reassignment vs. Same Job

Under ADA and FMLA, the employer may be required to offer a disabled worker another job to accommodate the worker’s disability. In our example, the warehouse may be required to offer Tom a job that does not include heavy lifting. However, if Tom is not qualified for any other job, or if every job in the company requires lifting heavy boxes, then the company is justified in firing Tom.

Most bankers would argue that following company policy regarding “self dealing” is an essential function for every bank employee – even the lowliest teller or janitor. Therefore, there is no other job that this employee is qualified to hold, if he has a disability that prevents him from following bank policies.

Alcoholism or Drug Abuse

It’s possible that the employee’s “serious health condition” was actually alcoholism or drug abuse. Under ADA, the employer needs to treat these conditions as disabilities, when they occur in current employees (but not in applicants.) Employers must make reasonable accommodation, such as giving an employee time off for rehab.

However, if an employee with a disability does something that would normally result in termination, the employer is justified in terminating the disabled employee. Suppose Don is in a wheelchair and Suzie has no disability. Each steals $100 from their bank drawer. The employer is justified in firing both Suzie and Don. In short, being disabled is no excuse for such behavior.

Even if Suzie stole the money because she had a drug or alcohol problem, or due to the “stress” of a loved one’s recent illness, she could and should be terminated.

Disclosure

The fact that the employee told subordinates what he was doing doesn’t mitigate the circumstances. Lying exacerbates wrongdoing, but telling the truth doesn’t turn a wrong action into a right one. 

Suppose the employee stole $10,000 from the bank, but told coworkers about it. Obviously, this doesn’t make the theft right. The employee could still be terminated for theft, even if he told the truth about it.

Empathy vs. Precedent

It might be nice in this case if the employer simply reprimanded the worker, rather than terminating him. However, employers also have to consider that they are setting a precedent on disciplinary issues.

Suppose Bob is reprimanded in this situation. Next week, Suzie violates the same policy. If the bank fires Suzie, she would be justified in filing a discrimination suit. In short, employers have to handle similar violations in the same way, regardless of their personal feelings.

If the employer does not fire Bob in this situation, the employer must tolerate similar actions by other employees. That’s probably not a precedent that the employer is willing to set.

In the HR world, the best motto is “never say never.” It is possible that if the employee in this question hired a slick lawyer, and filed a lawsuit, he might win a case for wrongful termination and be reinstated. However, the odds are not in his favor. It’s more likely that he would simply be stuck with expensive legal bills.