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I work at a non profit organization for adults with developmental disabilites. I have a supervisor who has worked here for several years who has recently undergone surgery and has been out for a short time. We have been having work performance issues with her as a supervisor since she has been back to work. She is very emotional and we think that she may need psychological help. Can we suspend her without pay and tell her that if she gets help during the suspension that she may be able to get her job back or legally should we just call it quits and release her from her duties, not mentioning counseling or any help, and tell her she can reapply in the future?

As the employer, it is not up to you to dictate treatment to your employees — it is up to their doctor.

Because this employee recently had surgery, it is possible that her current condition is related, or is a permanent disability.

You definitely need to sit down with this employee and have a non-threatening, calm conversation about what is going on. The conversation should focus around specific, observable actions that she has taken — not about her emotional state (or what you believe to be her emotional state.) For example, you might say: Yesterday you shouted at Tina when she was 10 minutes late returning from lunch. That seems like an extreme reaction, out of proportion to the situation. Can you help me understand whats going on? If she is noncommital, you need to ask: Are there any health factors here that could be contributing to the problem? That I should be aware of? (Also note that any health information she reveals during this conversation must be kept absolutely confidential under ADA. It cannot be shared, even with other members of the management team. )

Since she has recently had surgery, what you see as *emotional problems* may be related to medication that she is taking. Or, if she is in chronic pain, that often takes a toll on an employees good humor. Or, it could be a psychological issue, as you claim.

Note that many psychological conditions including depression are serious health conditions under FMLA. So this employee may be entitled to additional time off, to address these issues. That could include weeks away from work to recoup or it could include intermittent FMLA for therapists appointments, etc.

If the employee has a permanent disability that is causing these emotional fluctuations, that would be covered under ADA. You would be obligated to make reasonable accommodations for the employees disability.

Based on your conversation with the employee, you can suggest that she address this issue by seeing her family doctor or a therapist. However, you usually cannot make employment contingent upon such treatment. (That begins to look like discrimination based on a perceived disability, which is illegal under federal law.)  You should offer FMLA or a reasonable accommodation under ADA, if appropriate.

If the employee is not entitled to FMLA or covered under ADA, you need to address this as an objective performance issue. You could suspend the employee for 3 days or a week, based upon her performance issues, and let her know in no uncertain terms that you expect better performance when she returns. Also let her know that further outbursts will result in termination. That is the appropriate way to handle a suspension — as a disciplinary action, not as blackmail in a power play to force the employee to get the type of health care that you think is best.

If you simply terminate the employee without exploring the FMLA and ADA options, you will likely find yourself on the wrong end of a discrimination suit, or a wrongful termination suit, or both.

 You need to focus on objective, observable workplace behavior, not what you perceive as the underlying cause — because you are not her doctor and do not know what the underlying cause is.

This is a complex situation. Feel free to post any additional questions you may have.

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This entry was posted on Tuesday, September 22nd, 2009 at 9:58 am and is filed under
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