ADA

Phyllis C

I am in the state of Utah and I have the following question:

I have an employee who has been unable to work much of the time since 1997. She has continuously beset by medical and personal problems. She has used all available FMLA and all acculated leve blances.

With her medical restrictions, work accommodatin was made for a lifting restriction ordered b her doctor. Attendance problems have persisted. Again, she depleted all leave balances.

Recently, she was admitted to the hospital for a mental problem and filed a complaint of discriminaton based on her disability. She is now on medical leave (4 weeks) orders from her doctor.

In summary, the employee:
Used all FMLA leave entitlement, depleted all accumulated leave balances, given the organization cause to doubt that she can ever meet reasonable attendance standards, claimed her mental disability is caused by her job, not defined the claimed disability, not requested accommodation for the claimed disability...has not returned to work after being in the hospital.

Questions: Should the employee be terminated. Since she has filed a claim of discrimination, could it be used to justify administrative leave and pay pending the investigation.

smaces_twin

[font size="1" color="#FF0000"]LAST EDITED ON 07-08-04 AT 04:11PM (CST)[/font][br][br]On what basis are you going to terminate her? Do you have an attendance policy? Has she just violated that? ADA does not allow someone to bypass your attendance policy. But it sounds like you've allowed her to skirt it for the last seven years. So why term her now, because she filed a discrimination complaint?

Here's what I suggest you do...
1. Call a compentant attorney.
2. Figure out what your company policies are regarding LOA.
3. You say you "doubt" she can ever meet reasonable attendance standards. That doubt is not basis for termination especially in this case. You need to start a conversation with her and/or her doctor to see if she can meet the requirements of your position and if not figure out if you can accomodate or transfer her to an another position. If not, then you can terminate her employment.

What is the basis of her discrimination complaint? Sounds like you've allowed her to do whatever the hell she wants. I don't see how she can complain.

Forgot the adminstrative leave and pay issue. If that is what you normally do, do it. It's difficult to say without knowing more facts.

Don D

While picturing your ducks in a row, I notice that the first one is the discrimination charge. That's the only one you should deal with right now. Gather all of the facts, respond to the charge with advice from your attorney, and wait for the agency to signal the next move. You didn't say who the complaint was filed with or where it is in its progression, so I assume it might be with the EEOC. In any event, once a charge is filed or an attorney enters the picture, cut off conversations with the charging party altogether. Respond only to the agency requiring your response. If you've not had experience responding to the EEOC, you have an obligation to your employer to have a conversation with an attorney. And do not talk to her's, about anything, period. Good luck.