Pregnant/Tumor/Attendance Issues

HRQ

FMLA eligible ee is 5 months pregnant, has long term chronic attendance issues (tardy 2 time/week, 15 minutes each time) and several times has mentioned a brain tumor when explaining why she "cries all the time".

Ee was given a final written warning for attendance problems 9 months ago and no discipline since then. The current supervisor was hired 4 months ago and is now dealing with the continued problem. I advised the supv to discipline for attendance and leave med issues out of the discussion, and that termination is not appropriate since there's such a big time gap between documented discussions. (tardiness issues existed before pregnancy or ee's mention of the tumor)

I will send hte ee an FMLA letter with STD claim form for the impending Leave.

Should I begin the interactive ADA process re: the tumor? It doesn't appear to affect her ability to do her job except for the crying. She can still DO her job while crying, I suppose, but I'm not sure we want her to cry...

Your thoughts?

marc

I think you are dealing with a mess here and would tread very carefully. While it is true that FML, PDA and ADA are not intended to protect a bad employee, the prima facie evidence is stacked against you. The fact that you started a disciplinary process so long ago and abondoned it is a particular problem. Now that the EE is pregnant, attendance becomes an issue?

You are smart to ignore the old attendance issues and start that process over. The new supervisor can start fresh with the expectations of the job and clearly communicate same to the EE. I would document that with a fresh write-up and a new PIP complete with the EEs signature. And by the way, if the crying is interfering with getting the job done, making customers or other staff feel uncomfortable, I would include that as part of the discussion with the EE. Then if the brain tumor story comes up, it would be time to see where that conversation would go.

As tragic as the circumstances may be, it may not be a disability with respect to limiting a major life activity. She has clearly been able to work for this whole time and to get pregnant on top of that does not sound like it is limiting that part of her life.

Engaging in the interactive process might smoke out the need for accomodation, but that would be up to the medical profession. Meds might help, but that is their call and must come from them. Beyond that, we would be guessing as to what a reasonable accomodation would be.

Don D

If she has not been tardy for months, there is no need for discipline.

If she is not missing days due to her pregnancy, there is no need to initiate FMLA paperwork.

If she has not indicated a serious medical problem that affects her work, there is no need for ADA discussions.

I think you're jumping the gun in all three respects.

marc

Don, my initial reactions were similar to your observations. The thing that gives me pause in that hazy, vague phrase lawyers and judges bandy about, which is "...knew or should have known..."

In this case, the EEs crying jags on top of the pregnancy made me pause and reconsider. And finally with the attendance, the new supervisor is taking on the "continueing problem" and "the big time gap between documented discussions" which led me to think the attendance issues had not really been solved, just were no longer being addressed. The inference was attendance was still an issue, but the supervisor was advised that termination was not appropriate & to leave the medical out of it.

That made me worry about the PDA and possible related claims. FML is not a current issue, but it is not to much of a stretch to imagine the medical profession discussing hormonal changes leading to emotional mood swings, etc, etc.

Perhaps I am a bit paranoid about the impact the pregnancy has on this story - with over 90% of our workforce being comprised of women of childbearing ages and pregnancy related events comprising every one of our short term disability claims, I perhaps have a hyper awareness, which may not be a good thing.

HRQ

Thanks guys!

The attendance issue is ongoing: late 2-3 times a week, 15-45 minutes late each time, has been an issue off and on since last fall. The previous Director dealt with it once, then failed to stay on it. The new director is now choosing to deal with it and I was concerned about the discipline appearing to be related to hte pregnancy. The tardies certainly don't seem to be, as this has been an issue for so long.

I'll leave the tumor issue alone. If it gets to the point that the crying (tumor) is affecting her ability to do her job, we'll revisit the ADA issue. I don't believe the children/parents are affected by the crying but I'll ask.

Re: FMLA... When an ee is pregnant, she usually starts asking about FMLA, STD, PTO, months before her due date. I send the FMLA letter a few months before the due date because it explains FMLA, return to work, STD claim process, how much to pay for medical/dental insurance and where to send payments, etc. so they have their answers as early as possible. The letter states that the beginning date of the Leave has not yet been determined and includes a Leave request form and physicians certification.

When a Medical Leave is planned in advance, I send the letter in advance. When it's a surprise, I send the letter immediately upon notification. Is it inappropriate to send hte letter in advance?

System

When counseling her on attendance issue, I'd be upfront with her that the former boss dropped the ball but the new boss is stricter about attendance for all ees (assuming this is true). And that's why she got away with it for a while.

James Sokolowski
HRhero.com