Can we terminate?
sbrown
9 Posts
I have a sticky wicket and would greatly appreciate any input from the forum:
We are a small start-up with few defined and published policies. However, we have published a short term disability policy that allows 100% pay for 4 weeks, 75% pay for the next 8 weeks and then our long term disability insurance policy kicks in at 90 days.
We recently reorganized the Operations functions to bring greater strength to specific areas. Through this reorganization, it was necessary to release 15 employees within Operations. The reduction was done on a Monday. One of our Directors assumed he was to be released when, in fact, he was slotted to take a larger Directorship roll. On the Monday morning of the reduction, his wife called to say he was going to the doctor and would be in later. Then, around noon, we received a faxed doctor's note listing several medical conditions, recommending a heart catheterization, and stating that he could not perform his regular work duties until further evaluation. When we talked with the employee on Monday, he said he didn't know when the catheterization would take place but it would be at least 3 weeks. Also, he had told me the week before that he would never have a heart catheterization done. I talked with him again on Friday to check his status and told him I needed documentation as to when the catheterization would take place. He was vague and didn't want to discuss it.
He is an executive being paid in the to 10% of the employees in this location so we are not required to hold his job under FMLA. In fact, it is critical to the company to fill this position quickly. I'm not sure how ADA plays into this because he has not lost his ability to perform any "major life activities". His job is not physically demanding at all. However, he did have a heart issue about a year ago. I've heard from other employees who have talked with him that his plan is to get paid as long as he can while doing nothing.
So, we know he is playing the system. Can we terminate or must we allow him to take our limited resources while providing no value? If I give him a reasonable deadline to provide verification of the catheterization and he doesn't provide it, can I terminate then? Can we require that he go to a doctor of our choice to substantiate his health issue? Is there anything I've missed here?
I appreciate any advice you can give me. Thanks!
We are a small start-up with few defined and published policies. However, we have published a short term disability policy that allows 100% pay for 4 weeks, 75% pay for the next 8 weeks and then our long term disability insurance policy kicks in at 90 days.
We recently reorganized the Operations functions to bring greater strength to specific areas. Through this reorganization, it was necessary to release 15 employees within Operations. The reduction was done on a Monday. One of our Directors assumed he was to be released when, in fact, he was slotted to take a larger Directorship roll. On the Monday morning of the reduction, his wife called to say he was going to the doctor and would be in later. Then, around noon, we received a faxed doctor's note listing several medical conditions, recommending a heart catheterization, and stating that he could not perform his regular work duties until further evaluation. When we talked with the employee on Monday, he said he didn't know when the catheterization would take place but it would be at least 3 weeks. Also, he had told me the week before that he would never have a heart catheterization done. I talked with him again on Friday to check his status and told him I needed documentation as to when the catheterization would take place. He was vague and didn't want to discuss it.
He is an executive being paid in the to 10% of the employees in this location so we are not required to hold his job under FMLA. In fact, it is critical to the company to fill this position quickly. I'm not sure how ADA plays into this because he has not lost his ability to perform any "major life activities". His job is not physically demanding at all. However, he did have a heart issue about a year ago. I've heard from other employees who have talked with him that his plan is to get paid as long as he can while doing nothing.
So, we know he is playing the system. Can we terminate or must we allow him to take our limited resources while providing no value? If I give him a reasonable deadline to provide verification of the catheterization and he doesn't provide it, can I terminate then? Can we require that he go to a doctor of our choice to substantiate his health issue? Is there anything I've missed here?
I appreciate any advice you can give me. Thanks!
Comments
Firstly, he may be disabled under ADA. How do you know that he hasn't lost any ability to perform major life activities?
But assuming you're right, then obviously, he wouldn't qualify for reasonable accommodation under ADA. A reasonable accommodation could be a leave to allow him to have the medical condition addressed so that he is able to return to work to perform the essential duties of the job if he were ADA qualified.
So, with FMLA out and ADA out, from your claims, the only possibilities are any of your state's laws similar to ADA or FMLA that may allow him to be covered; and your company's policies and practices regarding employees in his position who are unable to work for a short period of time.
By the way you strongly worded your post, it sounds as if the company has already determined it doesn't want the guy around in any case. If that's the situation, fire the guy, consult your attorney, and fight it out in court, depsite my opening statement in this post.
So the question is "Why does the company want to terminate him?"
If it is because he wants to use the benefits, that could be unlawful retaliation. (For example, the Federal ERISA law, that governs employee benefits, provides a claim for employees who are terminated because they use employment benefits, like medical and disability benefits).
Before terminating or taking any adverse action against this employee, the company should hire an attorney to go over the facts in detail and the legal issues.
Good Luck!!