ADA

sambu

We have an employee who has exhausted all her FMLA leave. Due to ongoing treatments, she has used the maximum number of days granted under our sick leave bank and employees have donated days (she had virtually no earned time due to using her sick and vacation days as soon as she earned them in the past). She agreed to work part-time but didn't show up for work, nor did she call. We have continued to offer her a modified work schedule since December, to no avail. We then offered her a leave of absence through June so she can continue her treatments and return to work full-time at the end of June. She wants to work at home, but this is not in our best interest. We have asked her to meet us at the office to talk about some accommodations during the next two months. She called and asked if her attorney could attend. Since this is not a personnel hearing (i.e., her job is not in jeopardy), we are not inclined to allow this, as this would set a precedent in regards to future employees requesting their attorneys be present during informal discussions. Any suggestions?

bsa

I think you are within your rights to deny the presence of her attorney. As you said, "her job is not in jeopardy" and this is not a mediation hearing. I'm assuming that you want to establish a dialog with her because you want to continue her employment, but she isn't responding.

In the meantime, document all the accommodations you have already offered above and beyond your policy requirements and her lack of cooperation. You will need this information to include in your termination letter, that you know she will immediately show to her attorney. --So, call your's before sending the letter! I know we in HR try to avoid involving an attorney because we interpret their assistance as "not being able to do our job" and it is expensive. Sometimes, it is an investment in prevention.

Theresa Gegen TX

Since the employee already has an attorney on the hook, there is a good chance that your company will end up defending a lawsuit or at the very least a charge of discrimination. NOW is the time to meet with your legal counsel to start preparing your defense.

How do you do it? Document everything. If at the meeting, you are going to give the employee some options to chose from for accomodations, the employee should be given a written document explaining the accomodations.

Also, there is a fairly recent (last two years) case out of California that said that "work at home" may be a required accomodation in some instances. The employee in that case was a transcriber who could not make it to work on time due to her disability. The employer tried everything (flex schedules, etc). The employee wanted work at home, and the court said that the jury gets to decide if the employer should have given it to her.

By bringing up this case, I am not advocating that you let the employee get whatever she wants (including work at home). But the law of reasonable accomodation can be a bit complicated, and if she has an attorney on board who is putting ideas in her head and words in her mouth to set you up (and attorney's really do have some dirty tricks like that), it is in your best interests to be prepared.

Good Luck!!