Potential ADA problem/Termination Question
KLyon62
2 Posts
We have an employee who was verbally counseled last month for poor performance. She was scheduled to be re-evaluated at the end of February. Today, she has advised that she may a medical condition which may be the cause of her poor performance. Medical tests are pending and she might require major medical treatment for this condition. If this is the case, can we place her on unpaid LOA and then terminate after a period of time? We only have 14 employees so FMLA is not an issue. We do not have LTD in place yet and our handbook states personal LOAs may or may not be granted. One question I have is a potential ADA claim. Part of her poor performance is forgetting things on a daily basis. Thank you for any information, suggestions
Comments
1. Does the ADA apply to your company? The ADA applies if you have 15 or more employees -- BUT calculating the number of employees is not as straight forward as you might think. It is done over time and has certain requirments about weeks worked. I suggest you go to the regs and calculate this closely to make sure the ADA doesn't apply.
2. Is there a state law equivilant to the ADA that may apply. Several states have laws that mirror the ADA but are more generous in that they have a lower threshold for applications.
3. Is there an FMLA state law equivant that applies. Again, some states have more generous laws.
4. Is there any ERISA retaliation that could apply (for example if the company pays for the employee's medical benefits, the employee may be able to argue that you fired her, not based on performance, but to interefere with her right to get medical benefits.
5. What type of precedent does the company want to set with its policies?
These issues and the responses will guide you in managing this employee.
Good Luck!!