We are a medical office in New York State and my providers were considering firing an employee of 13 months for just not working up to standards. Numerous documentation of complaints from patients, proposals for improvment, absenteeism etc. The day after my providers meeting she came in for 1 hour to prove she had a swollen knee and her doctor is just giving us every 2 weeks for re eval. We have done this for 5 weeks and now another 2-4 weeks.
also, how can I research New York laws for this?
To quote a line from the old Laurel and Hardy movies: Well this is a fine mess you have gotten us into, Ollie. We will also note that many medical providers seem totally lost on HR matters related to illness or disability — which seems ironic.
It is not really New York law that you need to be concerned with, but rather the federal laws against discrimination including FMLA and ADA.
Generally you cannot terminate an employee solely because she is on short term disability. However, you can take any disciplinary action (including termination) against an employee that would have been taken, anyway, had she not been on short term disability. But before you begin your happy dance, we will point out that it is going to look very suspicious that you have waited 7 to 9 weeks before taking action on this issue.
If you had fired the employee the first week she was on short term disability (even by phone or letter), that would probably have worked. However, because you have waited all these weeks, it appears that you are punishing the employee, or firing her, for being on disability. At least, that is the way a slick lawyer will present the case, when he sues you. He will argue that obviously the employees performance was acceptable, or you would have fired her the first week that she went on disability. And obviously nothing has changed in her performance since then…she has not been at work to have any performance issues. So it appears that you are making this decision based on her disability.
The absenteeism portion of your complaint may also be a problem. If your office has more than 50 employees within 75 miles, you should have informed the employee of her right to up to 12 weeks of unpaid, job-protected leave under FMLA. Perhaps your office is too small for FMLA to apply. We are also assuming that the employees condition would not qualify as a disability under ADA.
If the FMLA and ADA do not apply, then you may be able to terminate this employee for absenteeism, provided that you would do the same if another employee missed the same amount of time for a medical issue such as childbirth or a heart attack.
The best practice in HR is for the employee to be discharged soon after a specific incident, and to limit the discharge to one issue. Citing a variety of concerns (absenteeism, lack of improvements, patient complaints) actually makes your case weaker, not stronger. It makes it appear that you are looking for any excuse to let this employee go. For example, it would make sense if a patient complained about this employee today, and you let her go tomorrow. But suddenly deciding months later that the employee has had too many patient complaints makes it appear that you are unfairly punishing this employee for being ill, or discriminating against her.
If you suddenly had new information, the situation would be different. For example, if you learned while the employee was gone that she had been stealing from the company. However, it appears that you were in possession of all of this information before the employee went on disability.
The best practice is for the employer to present an employee with at least 3 written warnings, on different occasions, for the same infraction, before terminating her. If you have documented each employee complaint with a written warning signed by the employee, and you receive another complaint, that would be an excellent time to terminate her. If you have not documented those complaints with written warnings, you could be facing a lawsuit if you let the employee go. And you will almost certainly be paying her unemployment benefits.
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