Termination

American Metals

I have a sub-par employee, he hurt himself off the job.  It is now affecting his work performance.  Can I terminate him?

ITHR

There are a lot of factors we don't know here that could help us give you more sound advice.  Is FMLA applicable for your company?  Has this person requested time off, light duty, etc because of this off duty injury?  Have you had problems with this employee's performance in the past?  If so, has there been discipline with written documentation? 

American Metals

Thank you very much for you help.  1st FLMA is not applicable.  He is a welder, has had lots of time off.  He misses about 2 days a week and itt is documented.  This guy has many verbal warnings about insuborination.  I really want to be fair with him however I want him to be fair to this comapnay too.  We hired him in November.  Also in November this guy lost a child to cancer.  We gave him time off to take care of his family.  In all fairness had he not had a such a devistating loss we would have terminated him for poor work performance. 

TXHRGuy

[quote user="American Metals"]Thank you very much for you help.  1st FLMA is not applicable.  He is a welder, has had lots of time off.  He misses about 2 days a week and itt is documented.  This guy has many verbal warnings about insuborination.  I really want to be fair with him however I want him to be fair to this comapnay too.  We hired him in November.  Also in November this guy lost a child to cancer.  We gave him time off to take care of his family.  In all fairness had he not had a such a devistating loss we would have terminated him for poor work performance. [/quote]

Write your policies.  Apply your policies.  When you make exceptions to old policies rather than making new ones (e.g., non-FMLA leave), you end up with exceptions.  Exceptions are a) a headache and b) a wedge for plaintiff's attorney.

In the absence of any FMLA concern, which I'm assuming means either the Company is not covered or the employee is not eligible (having been hired in November is not, in and of itself, enough information to know), you can still have ADA issues and non-ADA EEOC issues.

On the ADA side: how severe is the injury?  How is it affecting his work?

On the non-ADA EEOC side, how have situations surrounding poor performance in the wake of family emergencies/deaths been handled?  That includes situations before you were hired and about which you h ave no personal knowledge.  It's way more fun to have a policy and apply it than try to answer that question.

For the record -- a verbal warning that is not documented may as well not have happened unless the employee admits that it happened.  If it was witnessed and not documented, you can often get a sympathetic UI hearing officer but not so much with a jury or judge.