Decision Day

HR Beginner

Here's the condensed version of a very long scenario.

After repeated attempts to help a 5-year employee improve their performance, we recently used a "Decision Day" (i.e. Basically, decide to meet job expectations or decide to leave) with them. We hoped she would choose to leave -- But it got sticky...

Thankfully we have scads of documentation regarding poor performance. However, the day after Decision Day, she announces that a 3 month old on-the-job accident, for which she refused medical treatment, is now causing her emotional distress and her poor work performance. She found a FNP-C to write her a note releasing her from work for 3 weeks. In reality, she has been a poor employee for 4 years (documented), it's not the accident that caused her downhill slide.

Is it legal to fire her as we intended or would that be inviting an ADA lawsuit? Any advise would be most appreciated. Thank you!

Hatchetman

What's an FNP-C? Is he or she "licensed" or "certifed" to make the call about emotional stress? You would certainly have the right to get more informaiton.

You are only responsible for acting on correct information that you have at the time you acted. You can still hold the emplyee accountable for the poor performance up to this point -- however, she has now presented you with informaiton which may indicate that a reasonable accommodation is required to allow her to perform the essential duties from this time forward. Whether that is or is not the case, you don't know at this point because you have insufficient information.

You need to talk to the employee and find out what she is sayng aobut his alleged stress. "Stress" by itself isn't a disability under ADA. However, if there is a psychological condition that significantly impairs a life activity, that also relates to the stress, then that is what you will need to work with. At this point, though, again, you have insufficient informaiton to do anything but to talk to the employee and find out what she is saying about the doctor's statement. Is the emplyee actually saying that NOW she realizes or thinks that she has a conditon that caused an inability to perform the essential duties of the job (including meeting job performance expectations). Have her make that clear.

Gar

[font size="1" color="#FF0000"]LAST EDITED ON 02-26-02 AT 01:22PM (CST)[/font][p]I stronlgy suggest that you consult with legal counsel. It's risky, but I believe I would still go forward with the termination. I've been through these "one step ahead of the sheriff," 11th hour disability claims before. In 9 out of 10 cases they are bogus. Again, consult with legal counsel.

Mike Maslanka

gar is right get some legal advice...a good lawyer can help you sort through all the issues and assist you in coming to a reasoned business decision...but it sounds as if she used decision day to say," I still want to work here." By giving her that choice,and by her saying i want to stay and oh by the way I hurt myself,you are open to a claim that she was fired for reporting the injury...you may have more exposure from a worker comp retal claim than an ada claim...all experiences are good ones as long as we draw the right lessons from them...perhaps the lesson from this is that it is---as they say in prison--- better to whack them before they whack you...employees who are a bad fit should be let go asap...sooner or later their cunning comes into play and they start to say you are criticizing their performance not because it is bad,but because it is for their complaining about a work condition etc....good luck and let us know how it comes out...regards,mike maslanka

System

If you don't have a lawyer, you can find one here:
[url]http://www.hrhero.com/findanattorney.shtml[/url]

James Sokolowski
Senior Editor
M. Lee Smith Publishers