Employee threat to sue if he has to come to work
catherinetnc
79 Posts
Employee has exhausted all (15) PTO days. He is on 120 day probation after being written up twice in December - meaning one more violation and he's out. He told us he couldn't come to work this week and has a doctor's excuse. We told him that his PTO runs out Thursday, and that if he does not show up to work on Friday, he will be terminated.
We do not observe FMLA. Employee is bad apple, took advantage of slack manager last year and missed 11 days more than allotment last year (manager didn't do anything). Employee is clear on the PTO policy. Has not indicated any disability. He is of a protected class.
He told his supervisor he would come to work Thursday in spite of his doctor's excuse, but if he got hurt at work, "who would be suing who?."
Anything we can do? State is Mass.
Thanks for all comments.
Catherine
We do not observe FMLA. Employee is bad apple, took advantage of slack manager last year and missed 11 days more than allotment last year (manager didn't do anything). Employee is clear on the PTO policy. Has not indicated any disability. He is of a protected class.
He told his supervisor he would come to work Thursday in spite of his doctor's excuse, but if he got hurt at work, "who would be suing who?."
Anything we can do? State is Mass.
Thanks for all comments.
Catherine
Comments
I take it when you say you "don't observe" FMLA, you mean that you have fewer that 25 EEs, and hence are not covered by FMLA? Assuming that's the case, then the remaining issue I see is that he has a Dr's excuse for this absence. Given that, I would be very careful how you go about terminating him for this absence, if you go ahead w/ termination.
He's on probation (I assume the reason is excessive absenteeism?)-- so if he's in violation of the terms of his probation, you could let him go for that. But you should be careful to make very clear that he's being terminated for the pattern over time of excessive absenteeism, for which he was already in probation. You should NOT state that his termination is based on this final instance of absence beyond his alotted PTO. Base it on the pattern of excessive absence, and his failure to satisfactorily perform his job due to his excessive absenteeism.
Seems to be a fine line between excessive absenteeism and final instance of absence beyond PTO.
Any comment on the "if I come to work tomorrow and hurt myself or someone else, I'm suing" remark?
Thanks-
Catherine
What do you think?
Thanks-
Catherine
"Any absence in the next 6 mos" seems to me a standard that most EEs (including myself) would not be able to meet.
What are the terms of his current probationary status? If he's already in violation of those terms, I would base his termination on that if you decide to let him go. If you want to give him a final written warning, I would position it as just that, "final written warning", that references the fact that he has not met the requirements of his current probationary status, and must correct these failures immediately or face termination.
>
>I take it when you say you "don't observe" FMLA,
>you mean that you have fewer that 25 EEs, and
>hence are not covered by FMLA? Assuming that's
>the case, then the remaining issue I see is that
>he has a Dr's excuse for this absence. Given
>that, I would be very careful how you go about
>terminating him for this absence, if you go
>ahead w/ termination............
>
I thought it was less than 50 EEs? Did this change?
Thanks-
Catherine
Does this mean that you do not meet the criteria to have to follow that law or are you meaning something else?
I would handle the same as if the employee did not make a threat, except I would make sure his supervisor is aware of the threat in case the employee decides to have an accident on purpose.
Good luck!
Nae
As I understand disability law, the employer is required to make reasonable accomodations so employee can perform job. In this instance, he is a tech service rep who is supposed to visit customers on a daily basis. I don't think there is anything we could accomodate (can't do the job at home!)
This problem is complicated by managers who are ineffective and hard to reach (sales persons).
Thanks-
Catherine
Does the company have a policy regarding the need for a letter from a doctor attesting to an employee's fitness for return to work after an extended absence? If so, I think you should ask for such a letter before the ee is allowed to return. At the same time, if he cannot produce such a letter and has no more PTO, the company is entitled to terminate. Even under Massachusetts' Anti-Discrimination statute, attendence is a prerequisite to being considered an otherwise qualified person with a disability.
Having said all this, though, your plan to use this instance to bolster your documentation on this individual is a sound one.
Evan
You mentioned the lack of discipline for last years abuse of the PTO. By itself, that does not mean you cannot discipline, up to an including termination, for this years abuse. The bigger issue is whether or not you have allowed this kind of flexibility for other, non-protected, employees. That is where the protected class issue can get sticky. If you have allowed the generic caucasion male employee to abuse the policy all over the place and suddenly start enforcing it here - then you may have an issue, and your idea of starting the disciplinary process with a warning would make sense.
If you are worried about a disability issue, don't start that rock rolling down the hill until the EE has requested some sort of accomodation. Then you can engage in the interactive process - utilizing your written job description, and the EEs medical providers, to determine where accomodations are necessary. Then you can determine whether or not it is reasonable. Merely treating the EEs condition as a disability too early in the process can cause you unnecessary headaches.
Conclusion: If you have been consistent with your EEs in handling abuse of the PTO - then treat this EE the same way. If not, then getting the first step in discipline going is important - and not just for this guy.
If you do not have a policy, establish one, as it sounds like one is needed. This is a common issue with techies, and they do need clear guidance. Train everyone, and keep track of your manager's efforts on everyone. Good luck.
Don't make anyone come to work "sick" unless you get proper medical documentation they can perform their work, and then you will have "dueling doctors".
I am not familiar with Mass. employment at will standings, but I would guess it is not.
You do need to know.
It is hard to say what to do without knowing your policy. However, if your policy says x no. days within x period and he exceeds that, you can take him to the next level of the disciplanary process, which sounds like in this case it is termination.
If he has been out for a period of time (normally more than 4 days), I would make sure that you get a note from doctor saying he is able to return to his regular duties (or what his limiations are and can you accommodate him.) Are his absences due to an ADA protected illness/situation.
Just be careful that you have all your ducks in a row.
Also if he returns to work, and is "clean" for a period of time so that he is removed from discplinary action, you certainly can give him a "removal letter" but say that if his attendance once again falls in the unacceptable range, that he may not be granted another "warning/suspension/probationary period (which ever is the last he had) and could be moved to the next step, up to and including termination. (ie. In last 3 months, he has been out 15 days. He has been placed on verbal warning, written warning, probation, and returns to work. Then after 2 weeks, his probationary period is over, and he "hasn't cross the line". Give him the letter that I mentioned above. Then, if 1 week later he is out another 2 days and hasn't "dropped" any of the prior time off, then he could be terminated.)
Good luck.
E Wart
Our attendance policy as applies to an employee at his level is 15 days PTO per calendar year. We have no leave policy for the branch at which he works - there is only one tech for a large area and his absence is a hardship on us. In our largest branch (125 emp) we have FMLA which would cover it.
Before knowing the nature of the illness, the supervisor asked if he could come to work, sit in a chair and match colors. He said he would not be able to do that - his hands are too numb.
The employee has asked for STD paperwork - he is having problems with numbness in his hands and head and has to have an MRI. So, that might suspend the discussion for a while. He hasn't been able to come in to get any further warnings - final or otherwise. I suppose we could mail a warning to his home (return receipt).
Catherine