How long to wait before disciplinary action
maryfmurray
75 Posts
We've got an employee whose beginning to show some downward problems in performance. This has been brought to the employees supervisor a few times in the past couple of months and these employees are avoiding this particular employee. When the supervisor spoke to this employee about their performance; the response is I have not been taking my meds; it was asked why; they do not make me feel good; to back up slightly, in the past we have walked with this employee through many personal issues and do not wish to terminate. At the moment our agency is going through many changes and all employees are being asked to use as much of their vacation time as quickly as possible. Anyhow, once this employee returns from leave, everything is fine for a couple of weeks and slowly performance starts to fail once again. How should we handle? What would you say to this employee? When would you put something in their personal file? The employees job is the first person a customer sees and listens to when they call asking for someone. Any help on this one is appreciated! Thanks!
Comments
>to back up slightly, in the past we have walked with this employee
>through many personal issues and do not wish to terminate. At the
>moment our agency is going through many changes and all employees are
>being asked to use as much of their vacation time as quickly as
>possible.
As long as you (employer) are not willing to consider the reality that eventual termination may be the appropriate course of action, I don't guess I have any comment.
You mention that the emplyee takes medication which seems to help improve his performance but then he stops taking it because it makes him "feel bad."
Is this employee disabled under federal ADA or a similar law in New Hampshire (I'm not familiar with New Hampshire laws.) ADA of course, does require that an emplyer reasonably accommodate a qualified ADA-disabled employee so that he or she can perform the essential duties of the job, if needed. If the emplyee has made known a disability that impacts his or her ability to successfully perform the job, then the employer would be obligated to provide reasonable accommodations that would allow that to occur BEFORE discharging the employee (since you mention that he or she takes medication, your employer would seem to be aware of a medical condition that could be a disability).
For the sake of identifying the particular issues involved if he or she does fall under ADA, let me mention that if the employee is taking medication that mitigates or the remedies the impairment so that he or no longer is substantially impaired in a major life activity, then the employee is not disabled and therefore no reasonable accommodation would have to be made.
However, if the medication itself results in a significant impairment of a major life activity then that would still make the employee disabled under ADA.
I say this because you mention that the employee at times doesn't take the medication because it makes him or her "feel bad." That's a pretty nebulous term. But assuming the "feel bad" is substantive in nature, I note that that may be a justifiable reason for the employee not to take the medication. At least one lower court case in the took that situation into account in holding that an employee was disabled even though the employee was not using his hearing aid that would correct the problem becuase it created additional noises. As with the rest of ADA issues, cases like this become indvidual assessments. Thus in other cases, courts have not accepted employee's explanations for not taking prescribed medicationsand have held the employee not to be disabled or relieved of responsibility for their actions or poor performance.
Thus, if ADA is applicable here and the employee is not taking prescribed medication that would correct the impairment, whether or not he remains disabled (and thus entitled to reasonable accommodation) is a tricky question. You should discuss the matter with legal counsel versed in ADA and employment law before pushing the position "improve your performance or your fired."
But again, your company does need to start addressing the issues with the employee. It doesn't have to be a negative approach and in the long run may help the employee in dealing with a disability or the medical condition,if it is not a disability.
Finally, there is one last consideration, based upon what you posted. Again, because it is unclear what your statement regarding medication and helping the employee, you may be inadvertently treating or regading the employee as disabled when he or she is not. I admit in regard to my entire post that merely taking medication doens't mean the individual is disabled uner ADA. But either you need to make that clear in your post or evaluate the situation under ADA with the employee in all of its aspects.
Great response. I am very impressed.
Did you really write this at 1 in the morning.
Sandi
Follow Hatchetman's suggestions first, and if you have done everything you need to do from a legal perspective, then decide how much poor performance you are willing to tolerate. You cannot call her physician without her permission, of course, and the employee may or may not want you to. Not knowing the situation, I don't have a better answer. Just be cautious about her privacy rights.
This may be more than you wanted. I hope I don't sound like I'm preaching.
Good luck,
Sandi
I have said it before and it can be a balancing act, but I believe "tough love" (I hate that term) is order. Obviously, Hatchets comments on ADA should be followed..beyond that, you can be supportive, accomodate if you can and show compassion, HOWEVER you are not her keeper and she must accept responsibilty for her choices and getting the help she needs. How's that for preachy, Sandi?
I agree enough is enough. If you do not wish to take responsibility for your own actions, you must be prepared to suffer the consequences and I feel this employee should be made more aware of what those consequences can be. We are willing to accomodate and be supportive but our clients must come be served first. I will let you know the outcome when the employee returns and how things were handled. Again, thanks for all your input.