Attendance Exceptions?

Ashlyn · June 2003

With customer service being at the forefront of my company's mission, attendance issues are not takenvery lightly as our service standards are severly impacted when employees are out or late without notice. For this reason, I highlight the significance of attendance in our firm with each employee during his/her orientation.

Presently, we have employees in key positions whose attendance has been very much in conflict with our requirements, despite repeated warnings/discussions, etc. One of these employees recently brought it to my attention that the reason he is late is due to medical reasons that existed prior to his start with the firm. It was made clear to him during his interview process that he would be in a supervisory position, setting an example for his team, and looked to by his subordinates for technical guidance.

Are we required to make an exception to our own rules for this employee and not for others? We have 30 employees, all of which are exempt. Prior to starting with the firm, he was well aware of the position requirements, and yet, had not indicated that he may need flexibility in this arena. In fact, he started with the company in February, and has been late almost every day since, choosing only recently to advise us of his condition.

Any help would be greatly appreciated - it is a sticky situation legally, yes, but we are also concerned witb the message this sends to our other employees.

Balloonman · June 2003

While I am probably wrong from a legal standpoint. There is usually a number of items during the hiring where the employee must state they are able to do the job with or without accomodation, or a possible pre-employment physical or paperwork where they must put down if they have health issues.
If all of this was indicated things were fine then you may be able to term for that. But you must get some very specific details as to what his condition is and why he cannot make it in on time. Sounds to me that he could get up earlier, and be there on time.
You do have the concern that it could be ADA, he does not qualify for FMLA yet. Since you were not aware of a disability and he did not inform you until you started discussing discipline I would terminate once I had all the information on the medical condition so I felt comfortable I would not be unpleasantly surprised. Again I may get blasted but I would terminate him.
My $0.02 worth.
DJ The Balloonman

Ashlyn · June 2003

Thank you for your response, DJ...

Actually, the ee stated he suffers from a sleep disorder caused by ceasing medication and treatment 5 years ago for a condition that occurred over 10 years ago. (My head is still spinning from this one.)

He also furthered that his irregular sleeping patterns will eventually cease, yet does not state when or why. Although he did offer to provide us with the name and number to his medical provider for more info on his medical condition.

In all logical approaches, I do not feel we need to change our service standards to accomodate someone who cannot make it to the office on time, regardless of the reason. This ee has been in the industry long enough to know that flex time just does not work with the key position he is in. If there were any other positions where our clients would not be affected, then we would certainly explore them; however, there are none as each position in the company in one form or another has direct interaction with clients.

Whatever · June 2003

Have to disagree. You state you have employees in key positions whose attendance is poor. But the only one you raise a question about, is the one who indicated that might have a medical problem. You have to treat all employees equally. If you have an attendance policy, enforce it. Furthermore, do you actually give this ee an outline of the job and ask if he was able to do it? It is not enough just to tell the interviewee what the job entails. If the question is not asked during the interview, the ee cannot be terminated for lying. I think this could be a case asking for a lawsuit if you terminate.

Ashlyn · June 2003

Actually, we are pretty consistent in enforcing attendance issues. The other key employees have been reprimanded accordingly, as we normally do with other ee's. We have terminated ee's (key or not) for attendance problems. This is the first instance where we are unsure about what to do with an ee who coincidentally posed his "medical condition" right before we were going to take more extreme measures (i.e., termination).

Don D · June 2003

Yet one more disagreement. An employee need not be given 'an outline' of the job. The description of the job can be verbal or visual or written or a combination of any of the three. Once the candidate indicates or demonstrates that he can indeed perform the job according to the described standards (including attendance) without accomodation, he has put himself on the hook to deliver on that assurance. You are not subject to FMLA and we don't have enough info to walk the ADA tightrope yet. In any event, if the ee is not and cannot perform the essential functions of the job, including its attendance demands, you can fairly safely consider moving through the termination hurdles. I do agree, however, with the logic that you do not want to be perceived as singling out one who raises medical flags to the exclusion of other similar offenders who happen not to have medical issues. That is a deep, dark hole.

Even in the event you never fully covered the duties prior to hire, you may not be precluded entirely from considering termination; but in that event I would consult legal counsel since he is claiming medical reasons for his inability.

sonny · June 2003

Totally off the subject, but how do you have 30 employees ALL of whom are exempt? Just wondered type of business.

Ashlyn · June 2003

We're a brokerage firm. Our support staff fall under CA's Administrative Exemption (due to the nature of their duties and salary levels).

SMace · June 2003

ADA does not preclude someone from peforming the essential functions of the job. If he has to be there on time and he can't he needs to find another place to work. I'm no legal expert but being to work on time is generally an essential function.

Crout · June 2003

>ADA does not preclude someone from peforming the essential functions
>of the job. If he has to be there on time and he can't he needs to
>find another place to work. I'm no legal expert but being to work on
>time is generally an essential function.

Actually, a flexible work schedule is a rather common accommodation under ADA.

SMace · June 2003

>
>Actually, a flexible work schedule is a rather common accommodation
>under ADA.

Not if they have to be there on time as Ashlyn clearly states.

System · June 2003

It might be a good idea to talk to a lawyer before firing this guy. California's law might give him some protection even if the ADA doesn't. If you don't have a favorite attorney, you could try the ones who write California Employment Law Letter: [url]http://www.hrhero.com/findanattorney.shtml[/url]

Good luck.

James Sokolowski
HRhero.com

gillian2 · June 2003

As a follow on to the attorney advice, you should contact an attorney. The California disability regulations are included in the Fair Employment and Housing Act and a qualified disabled person is someone is "limited" in their life activities, not "substantially limited" as the ADA states. Disability is a whole different ball game in our state.

Attendance Exceptions?

Comments