Returned from FMLA/ADA Leave
sambu
23 Posts
Our employee has returned to work full-time with a doctor's release after being off on sporadic leave for the past six months due to cancer treatments. We've accommodated her leave through giving her the maximum number of days from our sick leave bank, donated days by employees, unpaid leave and a modified work schedule(which in essence allowed her to work when she felt like it). Since returning to work, the employee is frequently late and spends time going around the office trying to illicit sympathy about "unfair treatment," etc. We have tried everything possible to try to accommodate her illness and now she is threatening suit if we don't allow her to work at home. Allowing her to work at home is not in the best interest of our organization at this time. QUESTION: How often should we counsel her about her attendance record (because she is still claiming that she doesn't feel well due to the stress of the cancer treatments)? Also, she was not a good employee before her illness and certainly has not improved her performance since her illness. How long should we continue to put up with a poor work performance without getting into ADA trouble? Thanks for all your help.
Comments
Like any other accommodation, you need to look at whether or not it's effective and whether or not there are other reasonable accommodations that would allow her to perform the essential duties of the job if she were to remain at the worksite.
ADA may not require that you give the employee the ability to work at home automatically, but one reasonable accommodation "category" is modification of existing policies that would allow an employee to perform the essential duties of the job. And a policy prohibiting work at home could be modified. I'm not saying that you have to do it. But when you consider reasonable accommodations, don't reject it out of hand because it's not in the best interest of the company (that won't fly as a reason).
If you deny "working at home" do so on the basis that 1) it won't be effective (and you can demosntrate that) and 2) it would cause undue hardship to the company (more than just saying "it's too hard to arrange"). Even possibly that 3) it's not reasonable given her duties and the nature of the company's operations (e.g., she's a "metal template stamper" on an assembly line).
Take a look at Quesiton 33 in EEOC's "Enforcement Guideance: Reasonable Accommodation and Undue Hardship Under ADA" at "http://www.eeoc.gov/docs/accommodation.html#contents12." It addresses your very issue.
I wouldn't do anything to fire her until you've gone through and determined the effective accommodations (which means some trial and error maybe) and that she isn't perfoming the essential duties competently with them. At what point that occurs is the $64 question.
Generally, of course, if the employee is ADA-disabled and reasonable accommodation is provided and it's effective but she still is unable to meet the expectations of work (not meeting attendance requirements, poorly performing the essential duties, etc.), then you can treat her as you would any other problem performer. If you try all reasonable accomodations but they are not effective (if I can draw a subtle distinction between effectiveness and the employee's own "incompetency"), then, theoretically, she is not considered ADA- qualified. Again, at what point that occurs depends on the specific facts. Just document and be ready to show that you took all the necessary and reasonable steps before concluding she was unable to do the job even with reasonable accommodations. And keep to the interactive process and keep her informed.
Thus, you can see why you really can't discount working at home if it is at all possible and would be an effective reasonable accommodation if all the other ones eventually fail.