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Wednesday, September 19, 2007

Firing Someone with a Medical Condition

Hello Evil HR Lady!

I would like to say I love your website - I just stumbled upon today and I think it's great.

My question is - how do you fire someone with a medical condition? We have an employee who isn't very competent and her skills lack significantly yet she has worked for the company for 6+ years. (We're in the graphic design business - so it only creates more work for the people with skills.) And no one from HR will fire her because she has medical documentation saying she suffers from migraines.

She will miss days - sometimes a whole work week at a time due to her migraines. For example - in 33 working days she missed 16.5 - due to food poisoning and migraines. Isn't there a way to fire someone because they suck at their job and don't do much when they are "working." Any advise would be helpful.

Before I begin I am going to give my standard disclaimers--I am not a lawyer, I am assuming you live in the US in a state that has "at-will" employment.

Now my answer.

You can fire anyone, healthy, sick, black, white, pregnant and suffering from emotional distress. I'll repeat, you can fire anyone as long as you don't have some sort of employment contract.

FMLA, if it applies in this situation, has limitations. (Food poisoning, by the way, probably does not qualify.) Yes, the employer has to give you time off if you have a certified FMLA illness. But, that doesn't mean you can be a poor performer when you are at work.

There is increased risk when you fire someone who is in a protected class or who is subject to FMLA. The person may sue and sometimes the best thing to do is offer severance in return for signing a general release. For the record, you can't waive your right to FMLA. If the company is required to grant the leave, they must do so.

You have to make clear that the reason for the termination is not sickness, but performance. HR and her managers may not be interested in firing because they are wimps or because it is easier to keep this person on board than it is to deal with the paperwork involved in terminating. There is a maximum of 12 weeks of FMLA per year and if she's taking 16 days off in 33, she's going to max out that 12 weeks (60 working days) pretty darn quickly.

You can't do squat about it, by the way. It's not your decision to hire or fire. It's not your decision to assign out work. What you can do, is do your work. And by "your" work, I mean "your" work. Not her work. Document your assignments that involve her. For instance, send an e-mail to everyone on the team that says.

I just wanted to be clear about the Jones account and my responsibilities.

John: XYZ
Sheryl: QRS
Steve: ABC
Heidi: LMN

XYZ must be completed before Steve can begin ABC. I've attached a complete project plan.

I realize it's dull, it's boring and it squashes your creativity. Do it anyway. You're going to have to pick up her slack anyway, you just want to be clear that it wasn't your assignment in the first place.

But, the key thing is just letting go. You cannot solve this problem. You cannot make her headaches go away. You cannot get her to be productive when she is in the office. Your managers already know she is a slacker. She grates on your nerves. You just have to take a deep breath and ignore it.

Easier said than done, I realize. But that is what you, as a co-worker, can do. She can be fired. They don't want to do so. Sorry about that.


Anonymous said...

I have to add that dismissing someone with medically supported attendance issues can be sticky at the best of times, regardless of job performance issues.

I might suggest that perhaps HR/the Manager is building a documented file of performance-related issues before terminating, so the dismissal is supported by strong performance-related evidence. I honestly see a good year of this kind of documentation happening before a dismissal happens. (more if she's absent all the time LOL!)

If the employee does choose to launch a legal action over the dismissal, I can guarantee that they will have mounds of documentation about their medical issues to build their case that they were fired for medical reasons. The employer has to have mounds of documented performance-related issues to support their decision to terminate.

Anonymous said...

Not legal advice, just an observation about this type of situation. Timing can be everything. If a company tolerates sub-performance from an employee for 6+ years, and the employee has disability/fmla claims, I would want to see a steady stream of performance management documentation or a critical event before termination. These types of festering situations need up front professional legal advice. Isn't inertia a terrible thing.

Anonymous said...

Michael is spot on. Could not have said it better myself.

I'm not sure if the author of the question is a co-worker, manager of the person or what but Just Another HR Lady has a very good point in that HR may very well be documenting as we speak. A lot of times co-workers do not know the whole story. Someone will be fired and they will cry outrage because the person was their friend and appeared to be "a good employee"...but they had no idea that the friend broke policy after policy or what-have-you.

Evil HR Lady said...

Excellent points, all of you. Document, document, document and co-workers generally have no clue what is going on behind closed doors.

Anonymous said...

Shouldn't the answer simply be "there is no difference in the way you fire any employee."

It would seem that if you are wondering how to do it, it is because you can't clearly define the reason for doing it.

Patrick Williams said...

Evil nailed it in the first few words - "you can fire ANYONE".... but the sad fact is that most managers want to abdicate their responsibility for managing performance to HR. Her medical condition is a complication, but not a bar to discharge. The manager HAS to take an active and consistent position on managing performance with a focus on getting her skills and results where they need to be - to actually show her that we want her to be successful. BUT be clear that this effort is a two-way street. If she fails to hold up her end of the job, SHE will end up firing HERSELF.

Teri said...

Frequently the problem is that no one wants to do the hard work of constructively remediating a problem employee. I work in a large medical center with a mix of at-will and civil-service employees. The civil-service employees are protected by a process that requires a written plan, frequent evaluation meetings, and two periodic "unsatisfactory" ratings for termination - and even after that the employee has extensive appeal rights.

There are three options: (1) create sham documentation, hold the meetings, and hound the employee into doing badly. (2) Do nothing and tolerate the employee till he/she dies or quits. (3) Analyze the problem, create a plan for remediation, and follow it consistently and fairly.

A few departments will do (1). Lots will do (2). I joined a department in which (2) had been followed for about ten years. I embarked upon (3) with a problem employee and it was defintely a PITA. However, I had in the past been subjected to (1) and was not going to railroad anyone out of there. For six months I quite tediously discussed, documented, reprimanded and coached this employee.

Just like with kids, sometimes the employee screws up when you're just not in the mood to write up a reprimand, or it's a borderline situation where it seems silly. But I did it anyway, got used to the tears, kept a large box of kleenex and plodded through.

Unexpectedly, the employee finally got her act together after about five months of the six month process. She met the minimum standards and became an average performer instead of a blight on our department.

Six months after that, a position in my domain that is much more suited to her vast limitations becamse available, she moved to that, everyone is happy, and she is actually reasonably productive.

Following the proper procedure for dismissal for cause is not very much fun. The only thing worse is not following it.

Anonymous said...

Teri - What a great success story! Good job sticking to your guns.
I guess I'm NOT crazy when I tell managers that people can change and moving them out of the organization is not always what happens (or should happen) in the end of the progressive disciplinary process.

hrkristin said...

I thought Patrick's comments on Sept 21 were right on... "most managers want to abdicate their responsbility for managing performance to HR."

While those of us in HR can provide as much guidance and support to the organization, it's still up to the Managers/Supervisors to "manage" their staff... specifically as it relates to performance management.

I have had several instances in which Managers and Supervisors have asked me to terminate poor performing employees that either;

1. Were never told they were poor performers and therefore given no opportunity to improve

2. Given minimal feedback, but it was never formalized and/or (more importantly) documented

I have tried explaining on these, and many other occasions, that this is an ineffective method for improving performance and/or terminating ineffective employees. (Check out my site on Performance Management systems

As Just Another HR Lady and Michael Moore stated, building a file for an extended period of time and effective timing of the termination should result in a situation where... "You can fire ANYONE"

Anonymous said...

Apparently, none of you have been severly sick. Grant it, using sickness as a way to not perform is not ok or right. However, a employee has excellent performance skills but is sick does not grant for termination. As an administrative assistance, I have seen managers create documentation which are not correct in order to terminate the individuals. For me, I keep all of my docotor's notes, hospital discharge papers and anything stating the reason of my absence. No matter, I am being approach by management of excessive absence. As a contractor for state, my immediated contacts are very satisfy with my work. All of my work is done properly. So, because I am an ill person who happend to work, I have to be targeted?

NW Bearded Brewer and Cider Wench said...

Very interesting blog. My former co-worker has had a situation along this line, and I was hoping someone can clarify.

She was brought into the supervisor's office and asked to fill a position for a person who was just let go. The position would have required her to do much more walking than she is able (she has medical issues with her knees), and is a shift that she is not available for. According to her the supervisor that if she didn't take that position, she would be "voluntarily quitting".

We live in an At-Will state, but after explaining why she couldn't take the position, how could they have "let her go"?

Anonymous said...

i was recently fired for blacking out at work, my blood prssure was thru the roof and not a single employee bothered to call recue or an ambulance they just left me alone is it legal for them to fire me? not only that they let me drive myself home in that condition i almost had an accident on my way home i woke up in oncomming traffic could have been seriously injured as well as hurt others that was irresponsible yet i was fired