Nervous Breakdown: ADA? FMLA?
HRQ
2,849 Posts
Last Thursday, an employee of 3 years calls her supervisor from her lunch break to say she has a flat tire, will be back to work as soon as she can. She never returned.
Long story short, the employee's dad told her supervisor that she had a nervous breakdown, and also that she'd attempted suicide the previous weekend. The employee had apparently decided to just drive, drive, drive, until she ran out of gas. She made it from Phoenix, AZ to Deming, NM.
All three annual performance reviews have been rated at standard or above. Employee has one documented discussion, a final warning, for missing two consecutive shifts without approval. (She called last minute, time off denied, she took it anyway)
How do I treat this? Employee's dad told the supervisor that the employee would like to return to work next Monday. Could FMLA or ADA apply? The no call/no show needs to be dealt with but I am sure there are other things I need to be thinking of...
Long story short, the employee's dad told her supervisor that she had a nervous breakdown, and also that she'd attempted suicide the previous weekend. The employee had apparently decided to just drive, drive, drive, until she ran out of gas. She made it from Phoenix, AZ to Deming, NM.
All three annual performance reviews have been rated at standard or above. Employee has one documented discussion, a final warning, for missing two consecutive shifts without approval. (She called last minute, time off denied, she took it anyway)
How do I treat this? Employee's dad told the supervisor that the employee would like to return to work next Monday. Could FMLA or ADA apply? The no call/no show needs to be dealt with but I am sure there are other things I need to be thinking of...
Comments
I'll keep you all posted, as I'm sure I'll come up with more questions as we go forward.
Thurs 6/17:
Ee calls from lunch break to say she has a flat tire, her dad is coming, she'll be back as soon as she can.
6:30PM (closing time) another teacher brings ee's children to the front asking who was picking them up. (Ee hadn't returned from break)
6:40PM Ee's dad calls to ask if ee was working late, because she didn't come home yet. Supv explained ee's call from her break, dad said he didn't know anything about it. Ee's dad picked up the children, and showed supv a note from the ee (written to her dad) saying "..thanks for all you've done for me... all I ever wanted to be was a good mom...kiss the kids for me..."
Later that eve, Supv calls another ee whom she knows is friends with the missing ee. The other ee tells supv that just last weekend, the missing ee had attempted suicide.
Fri 6/18:
Ee's dad calls supv to say ee is still missing, she won't be in to work.
Mon 6/21:
Ee's dad advises supv that ee was found over the weekend in NM. Ee won't be in to work as she is seeking treatment. Hopefully can return Mon 6/28.
Mon 6/28:
Ee calls supv, has a release from her doc.
Wed 6/30:
I received the release from ee's supv. Doc's note says ee was "eval'd and treated on 6/21... same day released from our care... she is requesting a return to work date of 7/5... it is of my medical opinion that (name) is currently at her normal level of function and may return to work"
Ee was given final warning 8/03 for missing two consecutive shifts, unapproved. She'd called in at last minute, was told time off not approved, she took it anyway. Supv chose not to term her because she did make the effort to call.
My questions are;
1) My owner is pushing for term - would it be legal in this case? The ee has a prev final warning, and this time made no effort to contact us other than saying "I'll be back as soon as I can". Owner feels she should not be working with children because she "abandoned her own". I say that's her personal business, and she didn't endanger any of the children in her care as an employee, other than leaving us short staffed by not returning for her shifts.
2) What are our legal limitations, considering ADA, regarding disciplinary action for the violation of attendance policy? I feel the "right" thing to do is allow her to return to work and still discipline for the attendance violation. Maybe demote her to a position where she is not allowed to be left alone with a child or group of children. What I need is back-up to sell my owner on this vs. termination.
3) If my owner demands a second dr's opinion, do we pay for it? I assume so but want to make sure.
I appreciate whatever advice you can give. Don D, as always, let me know if I'm worrying about stuff that's not relevant! x;-)
I think you have a handful. Obviously, your first and primary obligation is to the children under your care. Your business could go completely bust in an instant if she were to return to her job and do something, anything unproper. For that reason, I suggest you just cannot return her to a childcare occupation, not even one at a somewhat 'lesser' level at the facility. Her behaviors are bizarre but in keeping with someone with mental illness. That alone tells me she cannot be in the environment. I believe the man who 'treated' her and returned her with that note was only getting her the hell out of his jurisdiction.
Picture this now: Something really bad has happened at your facility. Mothers and dads and police are running all over the place. All fingers point to this employee, including yours. Someone asks you, "And you knew this person had abandoned her own kids and had driven around waiting to run out of gas and wound up in another state and had recently attempted suicide???...and you still had her working in here with my child?
Put her on extended unpaid suspension while you sort through this with a labor attorney. He/she will guide you through this labyrinth.
Does the doctor know what the job duties are of the employee?
Does the school do any psychological testing of candiates before hiring to see that they are suitable to work with a very vulnerable population, children?
If there is a psychiatric problem indicated, cna you do a psychiatric or psychological fitness to return to duty exam?
Part of what's missing here is what explanations the employee is giving for some of what is going on.
ADA doesn't prevent an employer from discharging a disabled employee for not meeting attendance requirements that are announced and enforced consistent with its policy. But if the employer knows that the employee has a medical condition that is impacting the work, such as increasing absences, then the employer has an obligation to at least evaluate for ADA disability and if one exists to make reasonable accommodations before going down the discharge route.
I'd like to comment on a couple of your points Hatchet.
First, the doctor's note indicated the patient was seen, treated and released on the same day. I assume there was no exchange of information about job duties. But, I can't be sure, so we'll wait and see.
Secondly, the contents of the doctor's note were quoted and nothing was mentioned about psychiatric issues. However, any thinking person can connect enough dots here to know there is one.
Third, the schools hiring procedure that was in place when this individual was hired are irrelevant at this point. Whether or not she was psychologically evaluated then does not change today's facts.
Fourth, who needs explanation as to why one attempts suicide, wanders in the desert, abandons children and drives around until she runs out of gas? I suggest that common sense and logic must come into play in this scenario, literally for the sake of the children and the continued existence of the facility. Are you allowing any room at all for logic and common sense in your analysis of this situation? I think anyone could easily conclude that an individual with these episodes, whether ADA protected or not, cannot and should not be accommodated in this job setting. A quick look at the job description, if properly written, will rule her unable to perform the essential functions.
It is certainly not illegal to suspend an employee pending further investigation and consideration. That's why I think suspension and quick legal roadmapping is in order. As opposed to some lengthy 'interractive process', which will land the employer precisely where it already is.
Is there any evidence other than hearsay that the employee attempted suicide. Yes, it may have come from the father, but what do we really know about the situation.
Talk to the employee and get an explanaiton for her not calling in and if the school is so inclined fire her for violating policy. And that conversation should touch upon the reports from the father and others about her attempted suicide if your school is concerned about an employee's approriateness to work closely with chilfren. That's where then a psychiatric evaluation may be approriate.
I would think that the doctor's statement probably would have indicated something about a psychiatric issue. I don't know what "eval'ed and treated" means for the purpose of identifying a medical condition. You say connect the dots and you get to psychiatric condition. I don't know nor do you know that's what the doctor meant.
If there is no clear medical sttement reflecting a psyhciatric problem, then the employee needs to talked to for sure as it relates to attempted suicide.
As I said, there is a lot of information missing here.
Don, I inquired about a possible psychiatric evaluation process to see if that is done by the school. It may be possible to have one done now if the schol is concerned about her psychological or emotional state given that she interacts with children.
To say that the employee should be suspended at this point for an investigation is without basis. She's been cleared to return to work on its face. The school isn't imposing discipline for the failure to call in, but the poster's concerns is not only the failure to call in but a possible medical condition because thye seem to have some hearsya information that the emplyee attempted suicide.
Don, you seem to assume an awful lot -- wrongly again -- about my inquiring about whether the school does do post-offer psychiatric evaluations. It was asked only as one way of finding out if the school considers that to be something to assess before letting the employee teach or guide or interact children as part of the job.
If you notice I didn't suggest any course of action in my post, but only inquiring for clarificaiton and stating that more information is needed from the employee at this point.
After talking to her, if push came to shove, without considering the no call issue, keep the employee on leave pending a psychiatric evalution, or returtn the emplyee ot work but assing her to non-contact duties, pending the psychiatric evaluation. If the no call ins are considered return to work and disicpline her for the no call ins or suspend AND discharge for the no call ins.
We do not have any non-contact positions in the school, let alone any positions that are available, but we could assign her to an assistant position where she will not be the ONLY employee in the classroom with the children.
I have not spoken personally to the employee or her father about the situation - my information all comes directly from the employee's supervisor.
I have never met the employee. Do you suggest I have the supervisor call the employee and say "YOU tell ME what happened - I need to clarify what happened during your absences, as all of the initial info came from your dad and not you". Assuming the employee confirms "oh yes, I was a mess, I attempted suicide the previous weekend, etc." should we advise her she will remain off the schedule until she can provide us with a psychiatric eval, and at that time we will evaluate your employment status. And if so, who pays for the eval?
If you are unsure, I'm happy to run it by an attorney before taking this next step, but I also trust the opinion of the Forumites with more experience in this than I have.
I'm learning as I go with this one, and I appreciate everyone's input.
"(name) was recently evaluated and treated as an outpatient on June 21, 2004 here at (company). On that same date she was released from our care. (Name) has informed us that a medical release letter is required for her to return to work and she is requesting a return-to-work date of July 5th. Therefore, it is of my mydical opinion that (name) is currently at her normal level of function and may return to work."
I verified on the AZ Medical Board's website that the doctor is a psychiatrist (vs. med doctor).
Is the interactive process is appropriate here? It seems important to note that she "did the crime" (failed to return to work without notice) before we had notice of her possible "disability"? We have no doctor's note indicating there actually was a disability - only hearsay from the ee's father and her coworker.
As I was typing this, the ee's supervisor called me to check on the status of my recommendation. She said the employee does not appear to think her job is in jeopardy. I advised the supervisor to tell the employee we are working not on WHEN she can return to work, but WHETHER OR NOT she can return to work. She did not fulfill her duty as an employee to follow the attendance policy, however we empathize with her situation.
I think we will need to advise the employee not to expect a decision before Tuesday morning (we are closed on Monday) and I'll seek advice from an attorney.
Please keep sending the advice if you see anything new here.
And yes, Don D, I is a worrier. I want to do what's legal, but also what's right, and satisfy my boss all at the same time. Not an easy task. :-S
The fact that she may have seen a spychaitrist doens't mean that she is ADA disabled with a spyciatric condition.
The issue isn't whether she needs gto go through the interactive process, the issue is whether or not is is able to perofrm the esential duties of her job with or without reaosalbe accommdoaitn and withou unde ris (or immeidte risk) to herself or others (the children).
At this point, the doctor says she able to work.
But since you have some eharsay evidence, about a possible suicide attempt, if you want to make sure about her abiliyt to return to work and deal with vulnerable populaiton, then talk to her. (Right now I'm leaving out about whether or not she should be disciplined for not calling in and the apparent discretionary decision by her that she not return to work until July 5 -- but that may need also to be confirmed with the psychiatrist -- that the employee could have returned to work earlier by didn WANT to.>
Explain to her about the infromation you recieved and why you're concernd if you are abou ther psychiatric condition and her ability to teach the children and interact with them. If you employee a physician before talking to her you may want ot discuss variou approaches with the physician.
If she says "no" to whether she attempted suicide or not then let it go. If she says she's tried but is better now then talk to her some more and get the feeling that everything is okay now. You may want ot pay particular observation of her for the next few days at work, until you see that there is no problem with her interacting with the children.
On this latter point, if you still have a question, you may want to to sign a release for you to ask the doctor some follow up questions about the duties and her state of mind -- does he know shes a teacher of children, etc. Ask him if the issue of the attmpted suicde could affect her ability to interact with children.
You may want the usperivsor ot call the emplyee or you and the superivsor meet jointly with the employee. The supervisory dialogue you posted isn't right. Don't demand. Express the schools understanding of what occurred and from whom. Tell her why you're asking as it relates to the children. Im sure if she has concerns, she'll express them. If she doesn't and feels ready, willing and able to interact, then give her the support to do so. You may want ot even go so far in suporting her to say something like, "well, you know how demanding and hectic chidlren can be especially when you're coming back from a medcal condition. For the first couple of days back, we want to give you the support so is it okay if Ms. X works withou until Friday?", for example.
Again, I'm only raising this because of her interacting with chidlren all day. If she worked in a regualr office setting, I wouldn't go down this road. But there is an obligation to ensure that any emplyee is not a direct threat to the chidlren or doesn't wind up maniuplating them.
It was suggested by an HR advisor with a local employers group to go through the ADA interactive process. In the end, the employee's provider told us (in writing) that the employee has no disability. We terminated her for failure to follow attendance policy.
What caused me the most grief was how backwards the decision process became. Because there was nothing "wrong" with her, we termed her. Had she had a disability, we would have been forced to at least consider accommodating her.
ADA would not have required you to change your attendance policy as a reasonable accomodation.