How to handle this? Disability, possible employee misconduct
astro
1 Post
Back in October, one of our supervisers called, asking how to proceed in a possible case of employee misconduct - violation of the code of ethics. During the first month of a new sales project, employee in question had conspicuously higher amounts of "saved" accounts. However, there weren't and still aren't any written procedures on what they considered as a legitimate "save" of an account (something they are incented for.)The project was, as I said, a new one, and unfortunately, hard to discern whether intentional deception was used.
No disciplinary action was taken, nor was this brought to the employee's attention whatsoever. (Or so I'd thought!)
A diagnosis of epileptic seizures, along with excessive medical transcripts, was forwarded to me by the employees' supervisor shortly after this discussion. In early november, she ended up going on short term disability to adjust to an anti-seizure medication.
She had already been on a "final written warning" for exceeding her sick days, but we were advised (by legal) that terminating her for that reason might look bad under ADA.
Finally, it has been decided that under the "no tolerance" policy for any possible violation of code of ethics, the employee should be terminated - the final day would be next Thursday.
It turns out, however, that even though no warning or meeting was documented, the supervisor did in fact ask the employee if she was disabled, due to poor work performane, and demanded her to show hard proof of any medical condition or medications. Which, she did.
Also, he did inform her of her term date and reason, which she's not supposed to be aware of! Apparently, he was keeping her updated on our decisionmaking process in HR the whole time.
Should we proceed as planned, or hold off on this? Legal held off on this for a long time, because of the potential ADA issue.
I really don't know about this one, it doesn't seem to "smell" right.
The employee in question had an exemplary performance record prior to this year, when it seems she did have multiple health issues and took short term disability.
She also called me, after her supervisor called me initially, - and asked about potentially finding another job within the bank better suited for her, as she had been having health problems. She said she'd already cut down her work week hours to accommodate, but was afraid of losing her job due to poor work performance.
Well, what do you think??? I think I need a tylenol. Or two.
No disciplinary action was taken, nor was this brought to the employee's attention whatsoever. (Or so I'd thought!)
A diagnosis of epileptic seizures, along with excessive medical transcripts, was forwarded to me by the employees' supervisor shortly after this discussion. In early november, she ended up going on short term disability to adjust to an anti-seizure medication.
She had already been on a "final written warning" for exceeding her sick days, but we were advised (by legal) that terminating her for that reason might look bad under ADA.
Finally, it has been decided that under the "no tolerance" policy for any possible violation of code of ethics, the employee should be terminated - the final day would be next Thursday.
It turns out, however, that even though no warning or meeting was documented, the supervisor did in fact ask the employee if she was disabled, due to poor work performane, and demanded her to show hard proof of any medical condition or medications. Which, she did.
Also, he did inform her of her term date and reason, which she's not supposed to be aware of! Apparently, he was keeping her updated on our decisionmaking process in HR the whole time.
Should we proceed as planned, or hold off on this? Legal held off on this for a long time, because of the potential ADA issue.
I really don't know about this one, it doesn't seem to "smell" right.
The employee in question had an exemplary performance record prior to this year, when it seems she did have multiple health issues and took short term disability.
She also called me, after her supervisor called me initially, - and asked about potentially finding another job within the bank better suited for her, as she had been having health problems. She said she'd already cut down her work week hours to accommodate, but was afraid of losing her job due to poor work performance.
Well, what do you think??? I think I need a tylenol. Or two.
Comments
An employee is thought to have hidden "saved accounts" (I'm not quite sure what those are but I assume they are not good) although no one is sure what a saved account is in her situation and there are no policies against doing what she did. She was never talked to about these saved accounts.
In the meantime, the employee has an attendance problem and it is learned that she has a medical condition that may qualify as a disability under ADA (or possibly have you considered intermittent leave to cover the absences under FMLA). The company decides to hold off terminating her on the basis of excessive absences when it learns of that.
Now the company without having issued any policies or addressing the issue with her about saved accounts plans to terminate her on that basis.
Is that basically what is happening?
If it is then yes, I think your company is going to have a problem defending itself against a claim that your firing her because she has a possible ADA disability.
I wouldn't at this point. Certainly an employer is able to deal with excessive absences, beyond FMLA and even ADA. ADA doesn't require an emplyer to forever forget poor attendance once reasonable accommodations are made for qualifying disabiities that prevent the employee from performing the essential duties of the job or meeting the essntial demands of the job.
If your company can't prove that she did anything wrong with the saved accounts, including the fact that your company failed to look into the matter and then take any steps to prevent recurrence by issuing a policy, a termination on that basis has the smell of being pre-textual for disability discrimination, especially since the company was going to terminate for excessive abences originally but didn't because of a concern (justified or not) about disability discrimination if it did.
It sounds as if the supervisor has already determined that the employee has an ADA disability which she is accommodating by changing her work hours (unless that was done on the same basis that a supervisor would change any employee's work hours). But if no disability and reasonable accommodations have been made, then certainly now that the company knows the employee has a medical condition that appears to be impacting work (the absences), the ADA "interactive process" should be initiated and the company should determine if the employee needs and wants reasonable accommodation to allow her to meet atendance expectations and, if so, whether or not she is ADA disabled.