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Reasonable Accommodation

I have an employee who has an on-going medical condition and is protected. We have downsized to a small firm of 9 and need each professional to be able to cover the most ground possible-optimally (w/o quality compromise).

Lately said employee has been getting sick again and at crucial moments when he/she has been needed because of un-moveable deadlines. It causes stress to her/his team and leaves an unaffordable gap for the time he/she is gone.

The principal gets very annoyed .
I point attention to “what are the needs of the business” in an effort to fram it that way and explore legal options handling this situation. My style as HR and general support is usually to find a solution to the ned first–like hire part time to fill the skill need and then come up with a solution for an unpredictable employee.

There seems to be a reluctance to take consequential action. The company really cannot afford to”carry” someone” and this person really cannot be expected to “stretch”. I would appreciate any thoughts on this.

An employer with only nine workers is not covered under the two main federal laws that would apply to this situation, the ADA and FMLA. The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. The Family and Medical Leave Act (FMLA) covers employers with 50 or more employees.

Depending upon the state workers’ compensation law, a covered employee is entitled to wage assistance but the employer may not have to hold his job if doing so would cause significant hardship to the employer. Some states may permit the termination of the employee but require the employer to rehire him once he is able to return to work; while other states prohibit the termination of an employee on workers’ compensation.

Also, some states have adopted personal leave of absence laws in addition to federal legislation. Most of these laws don’t apply to small employers.

Without knowing why the employee is considered protected, it’s difficult to provide sound feedback but here are some things to consider.

Unless the employee’s absences are protected by the ADA, FMLA, worker’s compensation, or state personal leave laws, at-will employees can be terminated at any time as long as the reason is not illegal. Absenteeism and sub-standard work are legitimate causes for disciplinary action including termination.

It’s best to follow policy or established practice. If an employee in the past with a short term disability i.e. medical condition causing absences or sub-standard work was given accommodations and continued his employment then the same entitlement should be given to this worker. However, if this worker’s absences are more excessive and the hardship to the company is more significant, disciplinary action is warranted.

If no policy or past practice exists, it’s best to adopt a clear policy on how to handle this matter now and for future occurrences. The policy depends on what the company can afford to offer. Sample personal leave policies can be found on the internet and edited to meet company standards.

Aside from offering the employee a short term personal leave and, again, assuming no federal or state laws apply, an option is to have a discussion with the employee concerning her absenteeism and quality of work. Inform the employee that her work performance is not up to company expectations and future performance issues will lead to disciplinary actions. Be sympathetic to the employee’s personal condition but be clear that accommodations have already been made and his work still continues to suffer. Follow progressive discipline. If the poor performance continues after warnings then termination would be warranted.

Hiring a part time employee to assist with business need due to the employee in question being unreliable is only masking the problem. Yes, doing so will help the team and overall business short term. However, not dealing with the actual issue will only prolong the situation and set a standard for other employees. It’s best to address the situation now and establish guidelines for the employee’s future with the company as well as other employees who may find themselves in similar situations one day. Hope this helps!

This entry was posted on Tuesday, April 1st, 2014 at 12:30 pm and is filed under
Attendance Management, Performance Management, Workplace Management.
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