Term Ill Employee??

FunHRBanker · October 2007

Employee is diagnosed with cancer and has been undergoing treatment. He has exhausted all paid time and we have given him days without pay. He is not eligible for FMLA. Before he was diagnosed, we were having some performance issues with him. We needed a seasoned employee ready to hit the ground running, which we said up front. He is not performing up to standards. Quite frankly he doesn’t have the skills and had we known that, we wouldn’t have hired him. Supervisor discussed the issues with him last week. After much thought, management has decided that it isn’t going to work out. Are we ok to term?

Susan in La · October 2007

We routinely terminate employees who have exhausted all leave and all FMLA eligibility. I think in the case where they have no FMLA protection you would be OK.

FunHRBanker · October 2007

It would not be seen as retaliation?

NeedCoffee · October 2007

Do you have documentation of the performance issues prior to diagnosis?

FunHRBanker · October 2007

I'll check with the supervisor. I know he talked to him, but I don't know if he documented. Why don't people listen to us when we tell them the importance of documentation?!

NeedCoffee · October 2007

Story of my life. They never learn until it is too late!

System · October 2007

Terminating an ill employee for performance reasons without documentation could bring you a big headache, on top of the one you already have. You also might want to check any other employment laws in your state, such as ADA/EEOC. I would seek a legal consultation with a labor law attorney if your company has one.

mbeam · October 2007

Good points raised from prior posters.

Something you'll have a better idea of than any of us is whether you need to also factor in the perceptions of fellow co-workers if he were to be let go (ADA/retaliation considerations set aside)

Susan in La · October 2007

[font size="1" color="#FF0000"]LAST EDITED ON 10-08-07 AT 08:12AM (CST)[/font][br][br]I wouldn't terminate for poor performance, but at some point when a person has no paid leave and isn't eligible for FMLA, you have to let them go and hire someone who can work. We are a government agency and have a Civil Service Rule that allows us to do this after exhaustion of sick leave and FMLA. Our employees know this and we are consistent. If the person didn't qualify for FMLA they would be on probation and would be let go if they ran out of sick leave and didn't have a definite date of return to work.

FunHRBanker · October 2007

Part of the problem is that we don't want to kick him while he's down. Employees also like him. However, as I stated before, he doesn't have the skill set we thought he did. Last week, he sent an email to the CEO saying that he wouldn't be in that day (CEO is not his supervisor and policy says to call). He wasn't in as of 9 AM this morning, no call or email.

bakerdmw · October 2007

[font size="1" color="#FF0000"]LAST EDITED ON 10-09-07 AT 10:26AM (CST)[/font][br][br]Susan in LA

Can you email a copy of of your civil service rule? or fax?

[email]dbaker@detroit.lib.mi.us[/email]
FAX 313-833-0479

Jimfromflorida · October 2007

Others have mentioned the concern that this employee may have some rights under the ADA. Specifically, assuming the employee is covered by the ADA (cancer is usually covered depending on the symptoms) they may have a claim for accommodation for extended leave time up to 1 year and not just the FMLA period. I would first determine if they are covered by the ADA and then determine if an accommodaiton is required.

FunHRBanker · October 2007

"A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question."

My only rebuttal is that he cannot do the essential functions of the job. We needed a seasoned employee ready to hit the ground running and got someone who doesn't have the experience or skills we were lead to believe he did.

njjel · October 2007

Have you termed other ee's for illness when they have run out of FMLA and/or sick time? If so they I would think you'd be ok to do so here.

FunHRBanker · October 2007

We haven't really been in this situation before. This would set the precedent.

njjel · October 2007

Then I would stick to the fact that since he's unable to return to work, you need to terminate him.

FunHRBanker · October 2007

He's now back most days, but will be gone for appointments every other week. We've talked with a labor law attorney and he was VERY leery of terming the ee at this time...especially with our lack of documentation.

njjel · October 2007

well if he's back to work then that's an entirely different story! do you have a probationary period? If so, I would extend it by the # of days he has been out sick and go from here. If no probationary period, I would base any decisions on his work performance.

FunHRBanker · October 2007

He's past the orientation period, but wasn't here long enough for FMLA. Supr. noticed performance issues in the beginning and talked to ee. Unfortunately, supervisor has not (and nearly refuses) documented and of the conversations. I am aware of a minimum of 3 discussions with the employee, but always way after the fact. I'm now at the CYA point and have again told the supervisor that documentation is essential.

njjel · October 2007

Without the cooperation of your manager, you don't stand much change to replacing him. Will upper management support you if you go to this manager and tell him/her to do their job!!??

FunHRBanker · October 2007

Supervisor is upper management.

Dasher · October 2007

You really have to play the hand you have been given. If the supervisor will not and has not properly documented performance, do not terminate based on performance. Listen to your legal advice. You do not sound like you are ready to terminate this employee for previous behavior.

If the employee has no leave available, go from there. If they have not requested an accommodation, you do not have to deal with that issue until they do. Lots of times I find we assume ADA issues when they are not yet there. Do not allow yourself, as the HR person, to be suckered into solving this without the cooperation of the supervisor.

From what you have told us so far, I would tend to think the termination should be based on a combination of current performance and time and attendance issues -- but you have to build your case from where you are now.

Good luck. Isn't HR grand!

njjel · October 2007

When I stated term him on performance, I was referring to "future" poor performance and as always it should be properly documented even if you are in an at will state. Let us know.

Term Ill Employee??

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