non-performing employee has now been diagnosed with cancer
urway2destiny
19 Posts
Documented previously non-performing employee has now been diagnosed with cancer. Currently unable to fully perform duties. Will not go out on disability.
Overall how could this be handled (e.g. hire temp, hire new with new title, etc)?
Comments
Sad diagnosis but a very interesting situation that I am curious to hear responses. Keeping in mind the employee and the organization's privacy, I think we would like to know a few more details.though such as job, scope of responsibilities, is employee on a performance action plan since being determind "under-performing" and what has been the progress? How often has this been monitored? What is the employee sharing about the Dx ? Based on what you know about the ee and the job, can they physically do the scope of their job and /or work their scheduled hours or could the job and hours possibly deter their recovery? I would also think that the employer may have the right to request a medical release from their dr. now that the employee has shared their Dx and to also avoid any liability since the employee is refusing to go out on claim. On the flip side, what is the employee's rationale for refusing claim?
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What, exactly, is the cause of inability to perform? Is it effects of the cancer? Effects of the treatment of the cancer? How would you describe the problem with performance behaviorally?
What state does the employee work in?
How many employees work within 75 miles of the employee's place of work? Is any work dispatched to her from elsewhere or does her site dispatch work to others?
Being timid (and hiring someone else to "assist") may end up being more expensive than consulting with counsel, unless all counsel can say is that you should be timid in the situation. A lot depends on your answers to the above questions, so you may as well start putting some of this together so you know what to talk to counsel about. :-)
Agree with TXHRGuy...
Another thing to think about is have you sent a copy of the job description/requirements to the doctor? What medical documentation have you gotten? If you haven't gotten any, than that is the first place I would start. Either FMLA documentation if the employer falls under that Law OR possible documentation for ADA or even just documentation for ability to perform the essential functions of the job. Check out the EEOC's article on ADA and cancer. You can easily google "EEOC ADA Cancer" and it should be the first that pops up. I would link, but then BLR requires this message be approved... The title of the document is "Questions and Answers about Cancer in the Workplace and the ADA"
Directly from that article:
An employer may ask questions or
require an employee to have a medical examination only when it has a
legitimate
reason to believe that cancer, or some other medical condition, may be
affecting the employee's ability to do her job, or to do so safely.
Sometimes
an employer will be able to ask for medical information because it knows
that
the person has cancer and reasonably believes that the cancer itself,
its
treatment, and/or side effects are causing the employee's performance
problems. At other times, an employer may ask for medical information
when it
has observed symptoms, such as fatigue or difficulties with memory or
concentration, or has received reliable information from someone else
(e.g., a
family member or co-worker), indicating that the employee may have a
medical
condition that is causing performance problems.
Example: An attorney
complains to a law firm partner that, several times a day for the past
month,
the receptionist has missed numerous phone calls and has not been at her
desk
to greet clients. The attorney explains that she has been reluctant to
say
anything because she knows that around the same time the performance
problems
began, the receptionist started undergoing radiation for some type of
cancer.
The partner may ask the receptionist questions about whether her cancer
treatments are causing the performance problems and, if so, how long the
treatments are expected to continue and whether she needs a reasonable
accommodation.
Poor job performance, however,
often is unrelated to a medical condition and should be handled in
accordance
with an employer's existing employment policies.
Example: A normally
reliable computer programmer, who had surgery several years ago to treat
early-stage thyroid cancer, lately has been calling in sick on Monday
mornings. This pattern started shortly after the programmer began
working
weekends as a bartender. The supervisor can counsel the programmer
about his
attendance problems but may not ask him questions about his medical
condition
(including whether his cancer has returned) unless there is evidence
that his
absences stem from a medical condition.
FMLA does not allow the employer to require the employee to take more time than is medically necessary. So if the doctor states that the employee can work 1/2 days, unless your setup is specific on shifts and you can prove undue hardship, you have to let the employee work 1/2 days. An example is that of an airplane pilot that must work specific length shifts because he/she couldn't start in the middle of a shift.While neither law requires that the employer keep a non-performing employee, if you terminate, the 1st thing the ex-ee will claim is that you terminated them against their ADA/FMLA rights.