Can I please terminate???

T · January 2004

I have an ee who consistently misses their Saturday work day. These Saturday's are mandatory work days. Something always comes up where she can't come in. We have done progressive discipline and in her file there is a final written warning that states "any more infractions will lead to dismissal".

Well, this Saturday is her mandatory work day and conveniently she now has a staff infection or something that she has managed to get a doctor to put her off work until Monday. Is a staff infection a series health condition or does it matter? and can I terminate this ee on Monday morning when she gets in.

I don't want to be in court over this.

Thanks.

deniseE · January 2004

I'm not sure what kind of business you're in, but if it involves health care, food work...or similar things, a Staph infection can be very serious. Depending on the type and location, it can be very contagious...so it is something to think about.

That being said...you've moved up the disciplary chain...and if you cannot terminate this Saturday, you know another opportunity will come to you.

Do you have any policies dealing with employees coming to work with contageious diseases? Or placing limitations on the work that may be done by a person that has, say pink eye? If not, you may want to consider some policies like this...

ray a · January 2004

I would not terminate if the ee provided a valid doctor's excuse for being off work.

T · January 2004

We are a mail forwarding service and yes the ee will furnish a doctors note. What a shame that I shouldn't term her. Hopefully, something will come up in the near future to allow a termination.

Thanks for your input.

dolores · January 2004

My advice is like telling someone to "shut the barn door after the horse has escaped" but here goes: Your statement, "Hopefully, something will come up in the near future to allow a termination" could come back to haunt you in the future if you terminate, the e'ee files a sexual discrimination suit, and includes in a discovery request any e-mails your company has regarding her employment. Whether e-mails are subject to discovery is still unclear in my state (WV), so I try never to say something through e-mail that I wouldn't say on paper. Your statement could be construed to mean that you were looking for any reason to get rid of this particular "protected class" employee.

rad · January 2004

Staph infections can be serious stuff, I read somewhere that more hospital patients die from them that the actual illness that sent them in to begin with. Be sure to also get a note from the doctor before you let her come back.

Balloonman · January 2004

You will have an opportunity again within 30 days is my bet. Be patient.
My $0.02 worth.
DJ The Balloonman

Crout · January 2004

Keep in mind that you can be sued for any reason by anyone who can afford the filing fee, so I wouldn't necessarily let that fear be my guiding star. If you wanted to know whether or not her sick day constitutes FMLA, then it gets kind of tricky, and as others have said it's probably best to wait until she calls out again to term her. You'll have four more opportunities this month alone by my count. It's always best (within reason, obviously) to not appear as if your company is a vulture waiting to pounce on a helpless employee.

marc · January 2004

Your existing written warning says any more infractions will result in a dismissal. This leads to a couple of questions: Were the incidents that lead to the write-up based on unexcused absences or was "sick leave" involved in those cases? In other words, do you use a no-fault absenteeism policy? If so, why would you not terminate the EE? Not doing so would send a message to the EE and the work force that the write-ups have no meaning.

If sick leave was not involved and you do not have a no-fault policy in place, then, in my opinion, you should heed the advice of others and not terminate. I agree with Balloonman's prediction of future opportunities in the very near term.

SMace · January 2004

You should not terminate if she is eligible for FMLA or if you have not followed your attendance policy to the letter (if her other absences could qualify for FMLA, I would not terminate).

If none of her absences qualify for FMLA and you have followed your attendance policy, terminate.

If none of her absences qualify for FMLA and you do not have an attendance policy, have you treated others in similar situations the same? If so, terminate. This is not legal advice.

LeeR · January 2004

I wouldn't terminate if they have a valid excuse from an MD. Good things come to those who wait. This ee can't have a staph infection every Saturday. Next Saturday will probably be your chance to take the final disciplinary step.

HGHAHR · January 2004

I think this very much hinges upon your attendance policy and in what light you treat doctor's notes. In my area, there are quite a few doctors that will write ee's out any time they want to. If that's the case for you, you're in trouble!

mwild31 · January 2004

[font size="1" color="#FF0000"]LAST EDITED ON 01-06-04 AT 12:02PM (CST)[/font][br][br]Hi T

Progressive discipline & the doctor's note aside (it's been well addressed in the previous posts - great advice & my dollar bet is on the two week side), is your company At Will & does it state its At Will status throughout your policies? Because if you are and they do - you can terminate at any time - the classic - "not the right fit" termination discussion. By doing so, you will most likely pay UI, but that may be a small price if the ee is a problem ee. Just my thoughts. (Disclaimer: You could run into problems with this advice if you're public sector or union - if you're private - you should be okay.)

T · January 2004

Yes, we are an "at will" er. What a mess this all is. I would really like to term. her, but at the same time I am not wanting to end up in a court room. I don't think I would be and I don't even think I would have to pay unemployment. I definitely have the back up documentation that justifies term. Just the doctor thing and FMLA have me doubting myself.

Thanks again.

mwild31 · January 2004

I hear you, if you doubt yourself then don't do it. Just never forget the power of At Will when dealing with potential employee terminations - sometimes we make it all more difficult on ourselves than necessary.

Shadowfax · January 2004

Of course you can, but I agree with the others you shouldn't, not under these circumstances. And be careful of the at will reliance - it woun't protect you from discharge for the
'wrong' reason, and in the at will states, some statutory violation is the only thing employees have left to sue on.

mwild31 · January 2004

But, barring 'statutory violations' - it's an excellent doctrine! x;-)

Leslie · January 2004

T, Texas may be different than AZ but the last couple times the final step of progressive discipline resulted in a term but the absence was for a health problem - with or without a visit to the doctor, with or without a doctor's note - we have lost the UI hearing. Hang on and wait.

Don D · January 2004

If your primary concern is losing the UI hearing, you should not terminate for this absence. Everyone's crystal ball reveals that another chance will come your way in the very near future. In Texas, as in this state, a primary consideration in the UI determination by the Claims Examiner is this question: Is the claimant out of work through no fault of his own? In Mississippi, and in my experience with Texas UI, if the termination was triggered by the event of illness, the ruling will almost always be that he was not at fault for being ill, regardless of your policy. In our state, typically the appeals hearing officer will uphold the Claims Examiner's decision in that scenario.

ray a · January 2004

Don, that is exactly my experience in NY.

Sue · January 2004

We had a similar problem at our company several years ago - with employees easily getting doctor's notes, etc. We used to track Excused and Unexcused.

We put a point attendance plan in place. Now unless the absence is covered by FMLA, funeral leave, etc. - it counts against the employee. It's easier to administer and removes any favoritism.

HGHAHR · January 2004

We did the same thing at my last job. We basically went with a no-fault program where if you were late/left early or absent you got points. The only time a doctor's note came into play was if the ee was out more than one day. The the note would cause the absences to be counted as one incident.

T · January 2004

That is a good idea. I may try to come up with something like that. At least that way, once ee get so many points they definitely know they are on the verge of termination. How many points do you allow an employee? Do you start progressive discipline once ee reaches a certain number of points?

Any input would be appreciated.

Thanks for everyones comments.

Don D · January 2004

T: At my last place of employment, with a union contract, we had a no-fault point system. The employee was ultimately responsible for keeping up with where his points stood; however, he could request from us at any time a printout of his points. When the program began everybody had five points and could lose points in increments of half a point. Punching late or leaving early subtracted a half point from the point balance. Absences of whole days subtracted a whole point except for jury duty, military and FMLA. A month with no incident earned them a point and they could build the balance to a max of seven. When they reached zero, they were terminated, period. No counseling and reminders went along with the system. None. We never lost a UI case and went through several EEOC and FMLA complaints and prevailed in all of them. Many union grievances resulted from terminations but none succeeded.

T · January 2004

WOW! That sounds great. Thanks so much for the info.

-T

Shadowfax · January 2004

One more thought on this point system: I know an employer who uses it and employees get a print-out of their status every payday in the paycheck. Never lost a UI - period.

HGHAHR · January 2004

This is the way we did it:

Start with 0 points.
Absence - 2 points
Tardy/leave early - 1 point
1st counseling statement - 11 points
2nd counseling statement - 16 points
termination - 21 points
Points remain on for 1 year.
1 clean calendar month - (-1) point
3 clean calendar months - (-1) bonus point
6 calendar months w/o attaining any points (based upon anniversary year of ee) - $100 bonus

VERY successful program.

T · January 2004

Thanks.

T · January 2004

One more question. The ee brought in a return to work slip for Wednesday, Jan. 14, however it is for light duty and it also states that she can not wear a safety belt because it is in the area as the infection. Now, our policy for working in her department, mandates that you wear a safety belt. Do I refuse her to come back to work or do I let her come in and not wear the belt and mandate that she work that Saturday and hope she doesn't show up (so I can terminate her) or WHAT???

Thanks.

sonny · January 2004

I would not allow her to return as you can not comply with the light duty restrictions. .well you could, but if it is a mandate to wear a belt and she can't, then in my book she can't work.

HGHAHR · January 2004

I agree - I wouldn't let her come back until she could wear the belt.

Can I please terminate???

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