Problem employee

judy matt

Hello all from the Mardi Gras city. WE are in party mode pretty much here now! But, I digress. My issue today is an employee (health care admin clerk) that is giving us trouble with her job performance. This individual is expecting a baby in June. We recently reduced some staff, making it necessary to add extra job duties to all of our admin staff. This lady has been given a very occasional duty of helping out with distribution of supplies to the units. This requires a little more walking and putting supplies on the shelf. She has made it clear that she does not want to do this and has said as much to her manager. Now she claims she is sick and her doctor told her not to perform any additional duties. She can not produce a doctor's note saying that although she has been asked for it by her manager. This individual was a fair performer, at best before the added duties, now it's horrible. She literally (I am not making this up) sleeps at her desk! This thing is going to end up in terminating her, but my question is does anyone think I might have an ada or eeoc issue here b/c of the pregnancy? I instructed her manager to begin progressive dicipline, according to policy immediately. Your thoughts are appreciated very much

Judy

Pork

Performance issues do not rise to the level of eeoc or ADA. but that does not stop the ee from making any claim that she wants to make. However, FMLA may be included. I believe I would pull out my FMLA book and proceed ahead with administrative requirements to document by a physician this person's temporary medical condition. If the physician certifies then you will know how to proceed. It sounds like she may be using this current temporary medical condition to get out of some physical work. Once you have the paper work then you may want her to start using up her sick and vacation time under your FMLA policy

marc

You have a nice little mixture of issues to deal with. First, I would hold her accountable to produce the doctors note specifically excusing her from the work she is complaining about. That probably means giving a job description, including the additional duties to the medical professional.

Next, the Pregnancy Discrimination Act basically says you cannot treat a pregnant individual any differently than another individual with or without an illness.

Thirdly, if the change in behavior is a marked difference from prior behavior (sleeping at the desk), then you may be in the area of knowing or should be knowing that something different is going on in the EEs life that could trigger FML.

That said, address the performance issues to determine if you need additional medical certifications around whether or not she should even be at work, or if she is just milking this for all she can get. If the former, the medical certification should set some limits that will help you and her work through what can happen going forward. If the latter, I would expect your existing disciplinary policies would guide your next steps.

I don't believe you have any ADA or EEOC issues from the limited information you provided.
As Pork stated, performance is not an ADA or EEOC issue - they do not protect poor performance.

LV

Short and sweet. Discipline for poor performance. Document poor performance. Make sure the discipline is consistant and equitable as compared to other incidents of discipline. No EEO or ADA issues unless there are documented complications with her pregnancy that might be covered under ADA. FMLA not an issue as it relates to poor job performance unless it is a documented medical issue.

Don D

I agree with Pork. We've gotta always be aware of things that might trigger an EEOC charge. But, that should never, ever get in the way of moving forward, legally, in the company's interest. Unless you have picked certain undesirable duties to pile on because she's pregnant, I wouldn't back off, and I know you hven't done that.

Regarding the sleeping, document it over several days time and discipline accordingly. It is not our responsibility to dry to discern what may be going on in her life behind the scenes that might be causing her to sleep at her desk. Another caution; I've seen more than a few arbitrations and UI claims lost because people were terminated for 'SLEEPING', when there was little or no proof that they were asleep. I recommend using the 'inattention to duty', or 'periods of time with her head down and not doing her job' as instructed, or taking multiple breaks from work in violation of company policy. Sometimes hearing officers get carried away with the semantics.

judy matt

Thanks to everyone that answered my "Problem employee" situation. I will proceed accordingly, but w/o fear of ada or eeoc due to job performance. Thanks, I just love this forum!!

Judy