ADA?

rlk

I have an employee who went to his immediate supervisor and department supervisor last week and told them he was having some serious personal problems and needed to get some help. His department supervisor (a company officer) told him to see the benefits employee in HR for information about his medical coverage and what might be available. This week he never came to work and never called in so the decision was made to terminate him under the company policy of "3 days no call no show". Yesterday afternoon his uncle called the department supervisor and said he has been in a hospital and was not allowed any phone calls until today. The hospital is a psychiatric hospital for mental disorders and drug abuse. Now I am wondering if this could be an ADA issue. We will have to fill his position otherwise we will be short handed. We have no idea what he is in the hospital for, when he went in or how long he will be out. We have instructed the department supervisor to transfer the call to us if his uncle, medical facility, or the employee calls in again. I would like to know if any of you have had this type of situation come up before and how you would handle it. I would like to terminate the guy but I don't want a problem with the ADA if I jump the gun and not try to accommodate him. He does not qualify for FMLA because he has only been employed with us for 7 months.

Thanks for any advise.

stilldazed

We had a similar situation with some differences in some of the details. An employee who was eligible for FMLA confided in a supervisor to needing some sort of 'help' and was admitted to some sort of 'facility' as a inpatient in mid January. One of the differences for me was that the supervisor wanted to protect the employee, got really cagey with information, and contacted the facility several times on her own trying to glean details about the employee. The employee is nursing staff, and without details, my imagination was going wild on exactly what kind of help this person was needing and what kind of risk we might have as a result of her direct patient care. This employee had had FMLA leave Aug thru Nov for a different issue and exhausted 12 weeks. We were generous with her then and extended her leave of absence a little, returned her to a part-time schedule for an interim, and had her full-time again by early January.

This time I declared the employee eligible for FMLA protection but with no time left to designate and instructed the supervisor that she had no more than 30 days to provide proof to my office (per policy and practice) that her absence was medically necessary. Further, if I had nothing or no contact from the employee or a representative by the end of 30 days (mid February), the employee's benefits would be cancelled, and I would recommend terminating the employee due to voluntary resignation. And, I instucted to supervisor to stop contacting the facility trying to get private information. (I have found that nurses have a real tendency to do that. I think it comes from seeing so many patient records. They don't seem to know when to draw the line between patients and employees.) As it turns out, I made the supervisor angry, but she backed out of the loop, which made it easier for me to manage the leave of absence, the employee was back to work in about 3 weeks with medical certification, and my imagination was once again under control--the 'help' was not for substance abuse. The supervisor got over it.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 03-25-04 AT 05:54PM (CST)[/font][br][br]The facts here seem to be subtle as to whether you have to at least evaluate for the possibility of a psychiatric disability or whether you have actually already discharged him and aren't required to evaluate for ADA, or whether if you have formally discharged him (if you haven't truly acted on the discharge, such as processing him and and starting a search for a replacement) whether you would be required to restore him now that you know there is a possibility of an ADA disability existing which may require reasonable accommodation (which could be a leave of absence).

Your best bet is to check with your legal counsel because I don't think you're going to get enough reading out of the ADA law, the EEOC regulations on ADA, or the EEOC guidance on psychiatric disability and reasonable accommodation found on its website, to make a clear cut decision. I suspect there are some court cases that address this situation and that's why legal advice is probably the best way to go.

I would just say that as a lay person who has had to deal with discharges and changes in facts occuring at the same time, if you haven't actually dicharged him and took no action to discharge but only generally discussed it among management, you may probably need to consider ADA issues at this point (and not proceed on discharge until you've made a decision on ADA). But that is just a lay point of view.

This could even get down to what the emplyee said to the manager who referred him on to the HR benefits person or what the emplyee said to the HR benefits person. In short, could it be argued that before making any deicsion to discharge him, the company "reasonable knew" the employee had a reasonably potential condition falling under ADA (even if he wasn't eligible for FMLA).

Or your employer could just go ahead and undo whatever it has done up to this point and start at least the interactive ADA process, to the best of your ability, to figure out what is going on

Don D

The employee did his part when he confided in a supervisor. He effectively put the company on notice. The employer has no right to know "what he is in the hospital for". You have enough information to scream at you loudly that you must sit tight and assume this to be FMLA or ADA or both. No hurry. Settle down. It's one or the other or both, but termination will buy you a heap of trouble. The paperwork can follow. It will be a total waste of your time and talent to try to protest that he did not come by HR or he did not call in or you did not know where he was or you did not know what his condition was. Nobody will buy it. Not an investigator, not a judge, not a jury, because none of that is relevant.


Note: The preceeding is my personal opinion and has no value beyond that. Although it may be 'sorta offensive' or 'indeed offensive' to someone out there, it is offered without regard to that possibility. Should you find yourself alarmed by my post, you may privately mail me to protest or you may alert the principal's office. x:-)

rlk

Thank you all for your information. We made the decision to slow down and not take any action at this time. I had the same feeling about this that you voiced in your response. After getting more information from his department head about the conversations they had I am even more convinced that we are doing the right thing by not jumping on terminating him. We will have to fill his position while he is out because we have to get his work done. He is a machinist and parts still have to go out.

I don't ask questions on any forum very often because some of the responses are so often very smart a$$ answers and rude. I have been reading this one for some time now and I have to say this is the best forum I have found for interaction with other HR folks. I appreciate your help.

Don D

I don't know that you took mine to be smart assed or rude, but I hope neither. As we often say here, you'll get lots of answers, most pretty good, some harsh, some rude, some blunt, some flowery. That's why I include the disclaimer at the bottom of mine now. Whatever they are, they are honest and what I think works. Have a good one.




Note: The preceeding is my personal opinion and has no value beyond that. Although it may be 'sorta offensive' or 'indeed offensive' to someone out there, it is offered without regard to that possibility. Should you find yourself alarmed by my post, you may privately mail me to protest or you may alert the principal's office. x:-)

rlk

Oh, I did not take any of these responses to be rude at all. I want straight forward responses and appreciate your response. I also realize that a big drawback to these type communications is there is so much room for misinterpretation of what is truly meant. I am very sincere when I say thank you for your response. I have read many of your responses on this and other forums and I have always admired your honesty and straight forward answers. The responses I am referring to as rude have mostly been on one particular forum, that I will not mention, where everyone who is SO rude seems always to be "anonymous". Anyway, thanks for your honesty.

Becky