Excuses

HR Surprise

I thought I had heard a lot of good excuses for being tardy, but a manager came to me today with a new one...interesting, but actually serious, as this is an employee who has filed a grievance in the past and we need to be careful on how this employee is handled. Here's the situation:
Employee was counseled for excessive tardiness. Employee responded that he/she was "regular" and had to use the bathroom at 8:00 every morning - but couldn't use the company restroom because it was too embarassing and would create undue stress.
Now, we're fairly sure this is an excuse to enable children to be dropped off at school before coming to work. The question is, do we have to accommodate the employee even if there were to be a doctor's excuse submitted stating there was a medical condition? Even without a medical excuse, can we discipline for tardiness without getting into trouble of creating "undue hardship"? We really are tired of making accommodations for this employee.
Help!

Down_the_Middle

It's unclear whether you have a no-fault policy on attendance and this may be academic if you're anticipating an FMLA issue, but this is how I'd handle it. I would proceed with whatever disciplinary action is warranted under your policy based on the number of tardy's she's incurred and dismiss her argument that she must use a non-work restroom at precisely 8 am. You have restrooms avail to employees and her argument is way too weak to hold any substance. If she raises FMLA, then I'd ask for an MD's statement and you can then determine whether her bodily function requirement (at 8 am) qualifies for FMLA protection. If the MD confirms the medical condition, I'd pursue a 2nd opinion and see what that says. Chances are the issue will then go away as a nonFMLA situation. It seems highly unlikely this "condition" qualifies for ADA protection, so your responsibility to provide reasonable accommodation is non existent. This employee appears to be on the path for de-employment, so it'll be important to document your actions and be prepared to defend yourself if she files suit. You might find value in chatting with an employment attorney as this process unravels, so you can get the immediate benefit of legal advice.

Margaret Morford

Some practical suggestions I can make are to see if you can give this person access to a private bathroom or move their shift to second shift or let them start later in the day like 10:00 to noon, whichever works best for the company. None of these solutions will satisfy this person if it's really a child care issue. Then, you will probably need to get medical documentation and decide whether this is a serious illness or a disability, in which case you'd be looking at intermittent FMLA (which will eventually run out) or a reasonable accomodation? Remember, you are not required to do exactly what the employee asks for, only to work with them to come up with an accomodation.

Hope this helps. Feel free to call me at 615-371-8200.

Margaret Morford
theHRedge

Gar

If you can, simply try flex-time. Give the employee an extra 15 to 30 minutes in the morning and he/she makes it up at the end of the day.

HR Surprise

Thank you for your suggestions. We have made so many accommodations for this employee - who is very good at "using" the system - so we are really getting tired of it. There is not a private bathroom available and it is a small department, so the other staff will want concessions if we comply with hers. Can we insist, if we find it is not an FMLA situation, that she must start work at her assigned time? Starting late and making it up at the end of the day is exactly what she wants!

Margaret Morford

Do you have a second shift? If so, offer her that. Bet she decides that she can use the communal bathroom after all!

Margaret Morford
theHRedge

Theresa Gegen TX

[font size="1" color="#FF0000"]LAST EDITED ON 08-31-01 AT 08:49AM (CST)[/font][p]I would not assume that this employee has a disability and is entitled to a reasonable accomodation under the ADA.

If there is truely a medical need for this employee to go to the restroom and precisely 8 am and they can't use the workplace restroom, that needs to be supported by a true medical need.

We all face "stress", it alone is not a disability.

So I would not accept a generic doctor's note. I would want to know what are the specific limitations that this person has which are caused by the alleged medical condition.

Even if the person turns out to have a disability and need for an accomodation, the company's duty is only to give them a reasonable accomodation -- not the one they want.



Good luck!!

bsa

Theresa, I just looked at the DOL's FMLA medical certification form and I don't see a place for the employer to request medical information about a specific ailment. Is there another format that an employer can use, or would a cover letter to the doctor do?

Theresa Gegen TX

I don't know of any specific form related to a specific condition, but to determine if a person is disabled under the ADA, the employer needs to know if the person is substantially limited in activities.

Therefore, the employer needs to find out the limitations stemming from the alleged condition (stress generally isn't a diasability -- stress is not reallu an impairment, it is a condition we are all under; but a mental condition, like depression (which could stem from the stress) could be a disability).

I would focus on the medical information from the doctor about this employee's limitations, not what this employee says.

An employee can get FMLA leave, even if she is not disabled, by providing a FMLA certification. (Which can be challenged, but that appears to be a difficult process).

However, just because an employee can get FMLA leave, does not mean that the employee is entitled to ADA accomodation. Different information is needed to determine the need for and the reasonableness of an ADA accomodation.

Usually, I have my clients send a list of the essential functions of the job to the doctor, and have the doctor indicate which limitations the employee has in those job duties. From there, the client can determine if an ADA accomodation is needed.

The bottom line is that in a situation like this, the employer should not play doctor, but should try to get the medical facts from a doctor.

bsa

Thanks Therese. I like the idea of listing the essential functions of the position. Nail it down to job related and serious medical conditions.

HR Surprise

Thanks again for your input. We are a business office and do not have a second shift. I have instructed my manager to suggest this could be FMLA and ask for a doctor's written diagnosis - we will proceed from there. Since our policy states that FMLA and sick leave run concurrent she will also be told she will have to utilize sick leave. Thanks for the suggestion to get a detailed diagnosis! Don't know what I'd do without all your help!

Down_the_Middle

If you confirm FMLA is not an issue and have concluded that addt'l accommodations are just not prudent/practical, I'd tell her what's expected for starting times, in writing, and hold her to it along with everyone else.

lasiter

Have you ever thought of putting a lock on the bathroom door to ensure privacy?
I would suggest not even considering FMLA or anything else until she says it is medically necessary. So far, all she's told you is that it is "embarrassing." If, and when, she provides you with a doctor's statement that her tardiness due to a need for privacy to avoid "embarrassment" is medically necessary, then you can consider the FMLA need for intermittent leave.
Sounds like you have a "lulu" on your hands.