Can I terminate?

bgrimes · March 2002

I have an employee that experienced a work comp less than a year ago. The incident involved him literally catching on fire from head to toe. It may be a miracle but he recovered very well. No scars or anything on the outside. He has some family problems going on at home and his attendance has been affected due to the fact that he is attending counseling sessions with his wife. He also has informed us that because of his accident with the fire, he has a fear of flame, and no longer wants to work in a capacity where he has to be around flames from cutting torches, welders and the like. Every job in our shop requires the use of welders and torch cutters. His productivity has suffered a loss due to both these problems (his fear and his domestic situation). So now we have an attendance problem (due to the spouses counseling)a productivity problem (due to his fear & home situation). He is becoming a whiner. We don't know what to do with him....do we have to worry about an ADA infraction because of the fear?
Bottom line is this: We would like to dismiss him, but are afraid to. What do you suggest?

Crout · March 2002

ADA would not apply because his injuries were not permanent. You should check your State laws, but all things being equal, I would say you can terminate him. On the other hand, has he been counseled on his work performance? Does he know that the work issues facing him can jeopardize his job? Perhaps it might be a good idea to have a frank discussion and allow him the opportunity to improve his performance before you take the drastic action of termination.

awilliams · March 2002

I would not be so quick to say he does not have a disability. I once handled a case where the employee, a Chicago Depertment of Transportation worker, claimed he could not go out on snow calls because he had "snow phobia" and the judge bought it as a real fear that disabled him. Bottom line, go through your ADA analysis and if he has a diagnosis from a doctor that he has a real phobia, go through your ADA accommodation analysis and see whether you can reasonably accommodate him without an undue hardship. You really don't want this guy in front of a jury talking about how he was burned from head to toe on the job, and his mean and nasty employer didn't take his subsequent fear of fire seriously.

Gillian · March 2002

Do you have an Employee Assistance Program? Professional counseling from a mental health professional may be helpful.

Roberta · March 2002

I can understand his fear of flames. However, the ADA address the ability to perform the essential functions of the job. If the work involves working around flames, and he is unable to do so, there might be a way out for you. What accomodations would be necessary for him to continue to work in this environment? Has he requested any accomodation? Is there any documentation regarding his "disability"? Can he perform his normal activities of daily living? The courts ruled that working is not considered an activity of daily living (just ask Toyota).

Have you considered an unpaid leave of absence (with a defined limit) until his personal issues are resolved? Obviously, if there are union issues, you have different problems.

This is a very difficult situation for your company. I hope you can resolve this soon.

System · March 2002

Before you fire him, I'd check whether it would increase your liability for workers' comp benefits. The answer depends on state law and your specific facts. For example, if he can't work in his profession anymore, would that suddenly make him disabled under workers' comp definitions (which are different from the ADA definition)? If he were here in Tennessee, his benefits for a partial disability could double if he can't do his old job.

You might have to pay unemployment, too. And he might be eligible for FMLA leave for his emotional problems.

You might want to talk to a Missouri lawyer.
[url]http://www.hrhero.com/findanattorney.shtml[/url]

Good luck.

James Sokolowski
Senior Editor
M. Lee Smith Publishers

Don D · March 2002

I agree with Mr. Sokolowski's bottom line, "Talk to an attorney." I do have a comment about his stated fear of, therefore inability to work around, a job that has a flame associated with it. You said that all your jobs had that association, therefore, it seems he is telling you either "I cannot perform my job with or without a reasonable accomodation" or, "There's nothing here I can do". Remember though, that the fear statement came from him rather than a psychologist or psychiatrist, which you are within your rights to consider if the employee comes to you with this and its a self-diagnosis. The very least of your concerns is unemployment insurance. Regarding his need to attend counseling with his wife.....try on his shoes.

js · March 2002

I agree with everyone. There MAY be an FMLA issue and there most definitely MIGHT be an ADA issue. Mentall illness is a big hot issue with ADA lately. I would cover myself and thoroughly check into the issue.

I would like to add one point. AWilliams hit things pretty well on the head with his comments. You can be legally right-- and it can still cost you dearly. If the employee were to sue you, unless you were able to get summary judgement from the judge, you are probably going to lose. What jury isn't going to side with this guy? I would see if there was anything I could do to find something else in the company he can do. Surely you have some positions, somewhere, that do not involve welding activities. Do you have delivery? Or could he qualify for some sort of receiving job? I'm not sure what you have, but if there was a way to accomodate him slightly, without it being an excessive burden on the company, I might consider doing so.

Can I terminate?

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