When you know...but you don't know

I think I saw a thread on a similar topic before but can't find it now. I feel like I've covered myself here but am second guessing myself and want to run it by the pro's for a second look. (Sorry, it's lengthy)
I have an employee who works as a Payroll Coordinator. She has been with our company since 2005. She's been in her current position since 2008. As the payroll coordinator her job is very vital. We employee appx 400 people and she is responsible for the final entry and running of payroll, ensuring all payroll adjustments are made and correct, handling retro pay and/or insurance reimbursements, maintaining time sheets etc. Last May and this May she has been given the FMLA Rights and Responsibilites form as well as the physician certification forms for employee's serious medical condition. She has never requested FMLA. She was given the forms because both times her absences were getting out of control. According to water cooler talk - she tells her co-workers what's wrong with her but wont officially tell any of us, she has some serious health things going on, possibly cancer. From what we've been told, she's receiving treatments for cancer. She'll even tell her direct supervisor that she's going to the doctor on her lunch break or that she has to leave and get a treatment and will then be back. Her supervisor has told me he doesn't know what they're doing to her but most of the time, if she leaves to get a treatment and come back, she's pretty much no good for the rest of the day because it almost seems like she's high upon return. She has excessive absences as well as poor work performance. We just did yearly evaluations, which she scored poorly on in the areas of performance. She was also just written up recently due to multiple issues that had happened within one months time period (not to mention there are always issues every payroll but one month was really bad). It is believed that her poor performance is linked to multiple things. According to water cooler chatter, she has gone through personal problems, including a divorce and is having financial problems, is known to be a partier, and has the health issues. I know, I'm stating things to you that are not factual but giving possible explanations of things. It is believed by her supervisor though, that the medical and personal problems are contributing to her poor performance. There have been some major errors made that are completely unacceptable. She chooses not to take responsibility for them and when her write up was delivered, offered no explanation, showed no remorse, and was completely non verbal the entire time. She works in the same building as I do and I interact with her regularly. She is visibily ill. She has refused both times to turn in the FMLA paperwork. She's given me nothing with a dx or ever asked for accomodations (she's just kind of made them herself in working when she can, leaving for dr's appts etc). Have I done everything on my end? In other words, should the absences and poor performance continue, am I within my rights to remove her from her position? I feel comfortable with the FMLA area, that I've done all I can there. I'm concerned with ADA though. Her supervisor is extremely frustrated and feels that she is in control of a lot of areas. He has addressed issues with her need to eliminate distractions while working - such as playing music and texting/taking personal calls on her cell phone while working. She also likes to name drop and has stated multiple times that her family member is a lawyer so it feels like she's trying to intimidate us as well.
Any help, feedback or pushing me in the right direction of resources is greatly appreciated!
Thanks! :)


  • 2 Comments sorted by Votes Date Added
  • It can never be cut an dry, can it?! First, FMLA is an employer designated leave and does not have to be requested by the employee. You have provided her the forms and she refuses to complete them; therefore, her leave is not protected and she is subject to your attendance policy.

    It sounds like you have tried to engage in an interactive process with her to determine if she needs accommodation and she has not cooperated with that either. Document your tries.

    Deal with the performance and attendance issues at face value. Disregard the water cooler chatter. Perhaps you should have another conversation with her regarding FMLA/ADA. Inform her of her rights (and yours as the employer) and give her the paperwork again. I would suggest having two separate meetings for the behavior and the absences.
  • I generally agree with FunHRBanker - the employer has the responsibility to invoke FMLA; the employee does not get to elect it. However, the one "bump in the road" that I see is that, it appears, that this has been going on for over one year and the employer has not invoked FMLA. I think the employee (or her attorney) will have a valid argument that your lack of disapproving FMLA was tacit approval. It would not be fair to ding her now for the past behavior. I think you need to meet with the employee again, as FunHRBanker suggests, and put her on notice as to how things will be from this moment forward.

    I also agree that you should not react to speculation. That includes how or whether the poor performance is related to her medical conditions. I would give her the opportunity to make the connection, but would not make it for her.
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