Would This Be Considered ADA or an EEO Issue?

Bootsie

I have an employee in another dept. that has barely been here 90 days, has been out a lot due to illness and now has been out for over three weeks in and out of the hospital for a gastric bypass surgery she had over 5 years ago.
Her immediate Manager wants to let her go and I want to ensure that she doesn't fall into a category under ADA or EEO. Her performance was poor and she missed a lot of time from work.
Please advise!

LindaS

How do you know the reason she is off work? Has she provided any documentation? Since she is a new EE, I would send her a letter requesting additional information regarding her illness. Things like the length she will be off work, additional treatments, etc. Once you have that information you can better assess whether or not this is an ADA issue. If you determine it is, you next need to determine whether the amount of time she needs off work is reasonable, remember that attendance is an essential job function.

You state that her performance was poor..was this before she began missing work? If so, and you have documentation to prove it, you should be okay with termination based SOLELY on her job performance.

Bootsie

Her dept. Mgr. has found several areas where she made severe mistakes. They found these out looking though some of her work she did when she was here. Unfortunately, they were found after she left.
Yes, we have written documentation from her doctor stating that she is out for an undetermined amount of time and that they do not know the reason.
I feel like I am stuck here. If we were to have a 90 day performance review with her, she would not be happy with the results.
Don't know what to do here.

neveradull

In my opinion this is not an ADA or EEO issue. I
have not been able to find "unknown reason" as being ADA qualifier. I have found though that when regular, on time, attendance is an essential job function making a reasonable accomodation can be next to impossible. Make sure you are not assuming she is disabled. I would let her go.

LindaS

I agree in letting her go. If the mistakes she made would have resulted in being terminated in absence of her being gone, then go ahead and terminated. ADA and/or FMLA does not grant an EE greater rights than the EE would have in absence of their need for leave.

Deal strictly with the performance issue and follow your policy accordingly - just make sure you have everything documented.

NaeNae55

If you have sufficent documentation you are probably ok to term. Just make sure your documentation includes information on her training. She could later claim that the errors were just an excuse to let her go because she hadn't received sufficient training to do it correctly in the first place.

Good luck!

Nae