Holding Position for new employee

GJohnson

We have a new employee who has been with us for less than 90 days. She has taken off a number of times since hire for medical appointments etc.

Her supervisor just informed me that she will probably be off for an extended period of time for heart surgery after she becomes eligible for our insurance the 1st of August. I am assuming that she currently has some sort of coverage so that this isn't considered a pre exisiting condition or that she falls under HIPA.

The supervisor says that she is an "okay" worker, but is concerned about the time off that she has already taken, and that she will need in the future. At this early stage of her employment, most any time that she takes off will be time without pay.

We have held jobs for maternity and other surgeries for up to 12 weeks. She is close friends with other staff and is aware that we have held positions for an extended period of time. We have under 50 employees and are not affected by FLMA.

The supervisor is asking how long she has to hold the position assuming she will be off for awhile before it can be considered a burden on her department? I suggested since we have a history of holding positions for around 12 weeks that may be considered precedent.

Any thoughts?

HRQ

Precedent is definitely a factor with this. Even if it's not a written policy, your past practice of allowing up to 12 weeks Leave while holding the person's job will need to be considered here. That's gotta be tough, since you have fewer than 50 employees: losing just one hits pretty hard.

Is this the first time this has happened in this particular department, where in other departments this kind of absence was more easily absorbed? That may be your loophole.

ritaanz

Dam. Are you getting the feeling this person just took the job for the medical insurence? It certainly looks that way to me. Did anyone sit her down and explain about pre-existing?

How can you keep a job for 3 months for an employee that just worked 3 months? What if she doesn't qualify after her probationary/ new employee progress period?

HRQ

They've been doing it in the past, was my concern. Also wonder if the other cases were for longer-term employees. That could take away the concern about precedent....

I agree, the employee likely needed insurance and now she/he has it.

GJohnson

Some of the other employees who became ill had been here less than 1 year. Most had been here several years. Yes, the benefit issue has crossed our minds. The supervisor feels that the employee has told her about her medical situation to make it more difficult to let her go. The supervisor has already documented some of her concerns with this employee which would be key if she decided not to keep the employee after the 90 day period.

ritaanz

Has the supervisor discussed the "concerns" with this employee. Documenting them doesn't help if the employee was not aware that there are problems. Do you do 30 day reviews with new people or do you wait until the 90th day?

GJohnson

Supervisor has spoken with employee on a number of instances.

ritaanz

Pull the plug.

ACU Frank

Sometimes you have to break precedent. This may be the time. She's already going to kill your health plan for the year... don't let her kill your ability to keep the place staffed, too.

HRQ

"So... the reason we are having this talk, new employee, is because we are letting you go. You have missed a lot of time for your medical issues, you want even more time off for medical issues, and your performance hasn't been so great. AND we also really don't want your situation to affect our health insurance premiums. Sure, we've let others take the time off before, but the company would be better off if you just go."

I agree she needs to be replaced, and of course that's not how the conversation would go. I'm just saying be very careful how you word this or that may very well be what she "hears." Leave everything out other than you are unable to approve her request for Leave. Either continue working or we are forced to replace you.

You could also let her go based on her still being in her introductory period, but that doesn't take away the fact that you are well aware of her medical issues and that her resulting attendance issues are affecting her performance.

And by the way, she can elect COBRA right? She'll still affect your plan for the next 18 months.

ritaanz

Whoa Q, let's give some credit to Johnson.

New employee, when you were hired you were informed that the first 3 months, 90 days, 13 weeks were a probationary, progress review period. We have discussed your poor work performance several times. Effective immediately, you are being terminated as not qualifying during your probationary, progress review period.

End. Done. No further conversation.

HRQ

I didn't mean to sound insulting, but I was being sarcastic to make a point. Some might say there's really no difference, and I apologize.

Ritaanz's wording is perfect. x:-)

ritaanz

Oooops. Looks like I came on too heavy too. Didn't mean to. I just get steamed when an poor or marginal employee terrorizes us with medical problems or some other nonsense.

HRQ

I agree. And the true problem with this woman is that her performance stinks. There's just all the contributing factors that we are stuck with considering, and I also agree that she probably knew exactly what she was doing with she told her employer about them. 8-|

AnneHa

If you terminate her today, would she still be eligible for COBRA if her insurance doesn't start until August?

Anne in Ohio

KathyHR

>If you terminate her today, would she still be
>eligible for COBRA if her insurance doesn't
>start until August?
>
>Anne in Ohio

Not if they terminate before she's eligible for the insurance. COBRA isn't offered for insurance they didn't have. When she's eligible and enrolls in the insurance she'd be eligible for COBRA. If she's eligible for insurance and doesn't enroll, then she wouldn't be eligible for COBRA since she didn't have the insurance.

shlshsm

It looks like a slam dunk to terminate her for performance; however, you should consider several things. While there is no FMLA protection, what about ADA protection? She is not a long-term employee but she has divulged HIPAA sensitive information that should absolutely be avoided in any discussions with her. Not knowing the age of this employee, you don't want to get caught up in any age discrimination claim. And if you terminate her for performance, she could try to litigate based on all of the above which would include her less than satisfactory performance being based on her illness, absence and pending heart surgery that she voluntarily shared. When in doubt, seek legal advice.

Remember the needs of the company, not the individual, come first. If the company can function adequately without her, eliminate the position altogether; otherwise, terminate and replace her. If you experience performance problems before the 90-day introductory period has concluded, I have found that problems will persist after the 90-day introductory period.