ADA

janeS · July 2005

Hey all...thought I might get a quicker response in this forum on ADA.

We have an Associate who, despite 3 rounds of intensive in patient and outpatient alcohol abuse treatments, has unfortunately again.

July 4th weekend she took call voluntarily (we're a hospital)and answered one call on Saturday (came in for approximately 1 hour). The rest of the weekend and then beginning on Tuesday the 5th she never responded to call again. Additionally she did not respond to several calls from her director and also her manager to please get in touch. (One of the first times we dealt with her the Director sent the Manager to her home and she was coding on the floor of her living room).

She finally surfaced this past Thursday and brought into the Director's office and terminated for dereliction of duty and job abandonment. She then asked for a Personal Leave instead of Termination so that she could go back to an intensive inpatient treatment program and get herself fixed (no pun intended but we have to have sick humor to survive.)

Are we violating ANY ADA issues if we say no to the personal leave and terminate. She never mentioned personal leave until after her Director used the "T" word.

Much thanks in advance!

Jane in KY

LivindonSouth · July 2005

[font size="1" color="#FF0000"]LAST EDITED ON 07-11-05 AT 09:05AM (CST)[/font][br][br]I think you are on sound footing to terminate her. I would not give this individual a third or fourth chance at resurrection. Assuming that people at your facility have responsibilities, obligations, requirements and standards of conduct and ethics when on call, she should be terminated for not upholding any of those. Her termination has nothing to do with ADA or any prior or current alcohol problems she may or may not have. Performance is the reason for termination. ADA does not require that any of us retain people who do not perform as expected, not does ADA offer a cushion for them to fall upon when they relapse.

Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

HRinFL · July 2005

In my opinion, you are not violating the ADA. This was a performance issue. She voluntarily took call and did not perform the required duties, plain and simple. Additionally, if she was intoxicated, the ADA does not afford protection to alcohol/drug abuse IF the ee is actively using/drinking. It is the illness of alcohol and drug abuse that is protected, not the action.

I would make sure that the decision to discharge was consistent with past decisions, if you have not already done so, just as a CYA. Additionally, you should already know whether there have been other ees that have had relapses with substance abuse. If there are any that are silimiarly situated, or rise to the same level as this ee, and had similar performance issues, and were not discharged, it could be problematic. Hopefully, your substance abuse policy would eliminate these issues.

Judith · July 2005

Alcoholism is covered specifically in ADA -- I have ordered an ADA guide from the EEOC (free) which is very complete. You need to consult an attorney as I see this as a "sticky" situation. According to this information I would think you could terminate IF that is what you would do for anyone else -- I would run this by your attorney just to be sure and check what you have done in the past -- if anyone else has been given a second chance you may want to extend one to this employee. Good luck

LivindonSouth · July 2005

Second chance? She's already had THREE. I don't see this as an issue of 'chances'. It is an issue of blown opportunities. She was offered an opportunity to perform a job in a hospital setting, knew the work and its requirements and failed in those obligations. Neither the ADA nor the EEOC would have you retain this person's job while she enrolls in yet another program. I'll be amazed plus buy you a dozen donuts is you get a legal opinion that differs. x:-)

Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

TN HR · July 2005

The ADA does not protect employees who violate company policies. Deal with the behavior and not the disability, perceived or otherwise.

Document this latest fiasco and terminate her.

Gene

janeS · July 2005

Thanks to all who responded. I knew her performance was the issue...and we certainly would (and have) terminated others for similar violations but just wanted didn't feel good since I know about

that much about ADA. Guess I get to go to another conference.

Thanks again for all of the replies and wisdom.

Jane in KY

HRLASS · July 2005

I don't see this as ADA either. These are performance issues and along with those already mentioned, if she voluntarily took call and then didn't respond for the weekend, that's borderline job abandonment. As long as your practices for dealing with any employee, with or without this "problem", are consistent for non-performance of duties, I think you're safe. If you're unsure on this point, at the very least document everything you've said as well as this episode, put her on the highest form of discipline you have (but I don't suggest suspension - be able to watch her at work) and watch her. Any intoxication on the job or derelection of duties and out she goes.

ADA

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