ADA and cirrhosis of the liver
HR rosie
16 Posts
We have an EE who recently advised our facility manager that EE has been diagnosed with cirrhosis of the liver [we have no written documtation, just verbal exchange between EE and manager].
The manager is in need of cutting back one person due to slow business conditions and wants to lay this EE off - and does not want to bring this EE back when business picks up.
EE has been employed since July, 2006 and would not qulify for FMLA. EE was off work in Nov/Dec for six weeks due to a serious infection, which led to the testing that produced the diagnosis of cirrhosis. EE admits to being a heavy drinker, that the cirrhosis is a result of the excessive drinking, has never been through any alcohol rehab and continues to drink.
EE's performance over the past four+ weeks has steadily declined. Co-workers are beginning to complain about picking up EE's slack. Lack of performance has NOT been addressed by the manager. The manager just brought this to my attention this AM when he approached me with his intentions to lay off EE. Manager states EE was a great worker when hired, is capable of performing but is getting "sloppy and lazy".
My argument is that the lack of performance is related to the cirrhosis. EE performs manual labor [material handling, loading and unloading trucks], works outdoors all day and the weather has been very cold recently.
My question is: how would cirrhosis of the liver be viewed under the ADA? From what I have read, this would not be a temporary condition. If I agree to lay off due to poor performance over the past weeks, I have no documentation to support my decision.....
Any guidance, opinions or experience in similar situations would be appreciated. Thank you.
The manager is in need of cutting back one person due to slow business conditions and wants to lay this EE off - and does not want to bring this EE back when business picks up.
EE has been employed since July, 2006 and would not qulify for FMLA. EE was off work in Nov/Dec for six weeks due to a serious infection, which led to the testing that produced the diagnosis of cirrhosis. EE admits to being a heavy drinker, that the cirrhosis is a result of the excessive drinking, has never been through any alcohol rehab and continues to drink.
EE's performance over the past four+ weeks has steadily declined. Co-workers are beginning to complain about picking up EE's slack. Lack of performance has NOT been addressed by the manager. The manager just brought this to my attention this AM when he approached me with his intentions to lay off EE. Manager states EE was a great worker when hired, is capable of performing but is getting "sloppy and lazy".
My argument is that the lack of performance is related to the cirrhosis. EE performs manual labor [material handling, loading and unloading trucks], works outdoors all day and the weather has been very cold recently.
My question is: how would cirrhosis of the liver be viewed under the ADA? From what I have read, this would not be a temporary condition. If I agree to lay off due to poor performance over the past weeks, I have no documentation to support my decision.....
Any guidance, opinions or experience in similar situations would be appreciated. Thank you.
Comments
But obviously this depends the severity of the cirrhosis. If it's to the point where liver function is impaired enough, the cirrhosis will definitely limit major life activities - you know, like LIVING.
Also, if the cirrhosis is causing problems with the employee's ability to work, it may be substantially limiting the major life function of working.
What about the "heavy drinking"? Is this a euphemism for "alcoholism", which obviously would be protected under the ADA?
As was already mentioned, there is great potential for a claim of discrimination based on perceived disability here, either based on the cirrhosis or the drinking, and I would caution against terminating without solid documentation of performance issues.
What I would do is address the performance problems, though. Remember that you can discipline for poor performance even when it's caused by a disability. You just have to make sure you're focusing on the performance, not the disability. If, in response, he blames the performance on a disability and requests some sort of accommodation, that's when you would ask for medical certification and determine whether he has any impairment that would entitle him to protection under the ADA or a state disability law.
>Is this a
>euphemism for "alcoholism", which obviously
>would be protected under the ADA?
>
My take was this: If he's still drinking, it's not ADA.
So, even if he's still drinking, ADA still applies.
In 2000, Stephanie Gambini began working as a contracts clerk for the Da Vita kidney dialysis clinic in Washington. A few months later, she began to experience depression and anxiety. In April 2001, Gambini had an emotional breakdown at work. She was then diagnosed with bipolar disorder.
Gambini informed her supervisor of her diagnosis. However, her symptoms worsened; by April 2002, she was irritable, distracted, and unable to concentrate on her job.
To address her poor performance, the clinic prepared a written performance improvement plan for her. However, when her supervisors asked to meet with her to discuss the plan, Gambini became agitated. After she started reading the plan, Gambini began to cry. She says her face became hot, she felt a tightening feeling in her chest, and she began shaking.
After reading the plan, Gambini threw the document across the desk, expressed several profanities, and slammed the door on her way out. She retreated to her cubicle, where she was seen kicking and throwing things.
Gambini then became suicidal and was hospitalized. Da Vita initially approved leave, but after investigating the matter and receiving several emails from co-workers requesting that Gambini not be permitted to return, Da Vita terminated her.
Gambini sued Da Vita, claiming the clinic violated the state disability discrimination law. In response, Da Vita argued that it fired Gambini not because of her disability, but because "she frightened her co-workers with her violent outbursts."
In a surprising decision, the Ninth Circuit Court ruled in favor of the ex-clerk. Under Washington law, "[c]onduct resulting from the disability is part of the disability and not a separate basis for termination." Thus, if Gambini can prove "a causal link between the disability-produced conduct and the termination, a jury ... may find that the employee was terminated on the impermissible basis of her disability."
"Her 'violent outbursts' ... were arguably symptomatic of her bipolar disorder," the Court observed. "It is undisputed that people who suffer from bipolar disorder struggle to control their moods, which may vacillate wildly from deep depressions to wild frenzies of hypomania."
Although employers are ordinarily free to terminate employees for violent misconduct, the Court warned that "a decision motivated even in part by the disability is tainted and entitles a jury to find that an employer violated anti-discrimination laws." In Gambini's case, "the jury was entitled to infer reasonably that her 'violent outburst' ... was a consequence of her bipolar disorder, which the law protects as part and parcel of her disability." Accordingly, the Court ordered the case to proceed to trial. [Gambini v. Total Renal Care (9th Cir. 2007) no. 05-35209]
Note: This case is surprising in light of other decisions holding that disabled employees can be terminated for misconduct, even if it is related to their disability. See, for example, Anger Fit Isn't ADA Disability, Discharge For Museum Display, No Excuse for Insubordinate Behavior, and Read My Fingers. Or, for information on this topic tailored to your company profile, request Memos:
5700 Definition of Disability Discrimination
5770 Definition of Mental Disability
6000 Duty to Prevent Workplace Violence
Tina Marie
The mental illness side of the ADA is a minefield. We're dealing with a situation right now where one of our employees was terminated for calling in sick with extreme frequency. It was always something different - seeing a dentist today, a podiatrist tomorrow, just got done with the flu, yada yada yada. In the 6 weeks prior to termination, she missed more than 1 full day 5 different times for 5 different illnesses/symptoms. Now she's alleging that whether her hypochondria is real or just percieved, it's a disability under ADA.
I think you've probably answered your own question, now that I read your post again.