Sick for 3 Months
GRB
5 Posts
We have an employee who, for the last three months, has called in sick almost every day. It is really distracting to our other employees and they are asking me to fire him, because they say he is being dishonest with me. They have seen him at night going to dinner and on other outings and he looks fine. He has a difficult time acquiring doctor's notes (I've heard many, many reasons why), and he claims that much of his illness is due to non-work-related psychological stress which causes physical harm. He has told me that if we fire him, it would cause him more psychological harm, therefore, causing more physical harm and when I suggested he go on medical leave, he said the same harm would come to him and doesn't want to do that. I have no proof either way. Where do I go from here?
Comments
Does your company have FMLA obligations? Is the employee eligible and at a covered worksite? If so, have you followed up with any of your FMLA processes? Has written notification of anything been given?
If you have ADA obligations, then it sounds like you are long overdue for entering into a dialogue about reasonable accomodation. Even though it sounds like this person has or will paint themselves into an unaccomodatable corner, you still have to enter into a dialogue with them.
How many employees do you have? How many work at or take direction from the site where this person is assigned to work? What state are you in?
You need to adhere to your policy in this matter and not the reports of other employees. Just because other employees see him at out night, is not grounds to fire him.
If you have requested doctors notes in writing with a deadline and consqeuences of not adhering to the request, then you have grounds to terminiate. I would not be blackmailed by his statements of "If you fire me it will cause me more stress". He has yet to prove that he had any medical condition. You shoud have documented all of your conversations with this employee, especially the conversation of refusing to go on medical leave. Ifyou haven't, now is the time to start building your case.
[quote user="pammcconnell"] You need to adhere to your policy in this matter and not the reports of other employees. Just because other employees see him at out night, is not grounds to fire him.[/quote]
Pammcconnell raises a couple good points here. Reports from non-managerial employees may be cause for investigation but, in cases like this, I wouldn't make employment decisions based on such reports. Additionally, it's certainly true you need to adhere to your policy if you have one but what policy covers going out to dinner on a day you called in sick? If the illness is stress related, perhaps going out to dinner with his family in the evening is stress reducing. What then?
[quote user="pammcconnell"]If you have requested doctors notes in writing with a deadline and consqeuences of not adhering to the request, then you have grounds to terminiate. I would not be blackmailed by his statements of "If you fire me it will cause me more stress". He has yet to prove that he had any medical condition. You shoud have documented all of your conversations with this employee, especially the conversation of refusing to go on medical leave. Ifyou haven't, now is the time to start building your case.[/quote]
Pammcconnell is definitely right about documenting your conversations and it certainly wouldn't hurt to have your conversations in the future witnessed by another manager.
With respect to asking for doctor's notes, keep in mind that they have limited value because the doctor doesn't really have to say anything more to you than that the person has been seen or, perhaps, has been and continues to be under their care. That doesn't really tell you if they are entitled to any sort of LOA or if you should simply apply your attendance policy. If the employee thinks that you are asking for information to which you are not entitled to, you could be perceived to be in violation of ADA, if you have ADA obligations.
With respect to the employee's plea not to be fired because being fired would cause them even more stress: that really adds nothing to the scenario. Being fired causes stress in healthy people as well as people with stress related conditions, so that's not really a good reason not to terminate employment. There are other good reasons not to terminate employment (e.g., it's not legal because some protective law covers their situation or these absences don't violate your policy or they do but the situation is not adequately documented) but it's not yet clear if they apply to the situation you are talking about.
I think the three overall messages from people here are 1) obey the law, 2) obey your policy 3) apply good fundamentals of HR practice.
Thank you for all your responses. I am new at the HR position, and have never dealt with this situation before, so any specific advice is much appreciated. To answer some of your questions, we have documented all conversations with him and they have all been witnessed. We have 14 employees who work around him and we are in Utah. We have requested a doctor's note in writing with a deadline, but did not list consequences of failing to meet the deadline because we felt if he was sick and could not do what he needed to do to get the note, it would not be fair to him to terminate him; however, it has been three weeks since that deadline. How do I know if I should put him on FMLA or ADA if I can't get any information? How long should I wait?
You've waited long enough. If you have requested the information, given a reasonable amount of time for the employee to obtain the information, followed up with the employee regarding the required information, and he still won't provide it, then you should not have any obligation under FMLA or ADA. As an employer, you are required to have a dialogue with the employee, but the employee must uphold their end and provide information to you so that you can determine whether or not any of these laws apply. You are not required to guess.
If you have not followed up with the employee about the deadline, then I would suggest you do that. I would also establish a firm deadline for him to return the paperwork--no excuses. If he doesn't return it, then proceed under your policies. Has he exceeded his available sick time? Do you have a policy in place that deals with excessive unscheduled absences?
In prior jobs, I found it effective to establish an expected rate of unscheduled absences based on a percentage of available work hours. We allowed employees 48 hours of unscheduled absences due to illness per year. This equated to 2.3% of available work hours (assuming 2080 hours per year). We would list each unscheduled absence date and the number of hours associated with it over the last 12 months, and then provide the unscheduled absence ratio. When an employee was provided that information in black and white, and saw that their unscheduled absence rate exceeded the expected rate, that often brought the point home to them. Naturally, you would not include any scheduled absences or FMLA related absences in that calculation. We told employees that if they did not control their unscheduled absences and they continued to trend above the expected rate, then we would have to pursue further disciplinary action, including possible termination.
All that being said, I would highly recommend that you consult your employment law attorney to ensure that there are no other avenues you need to pursue before proceeding with disciplinary action.
[quote user="jvoigt"] You've waited long enough. If you have requested the information, given a reasonable amount of time for the employee to obtain the information, followed up with the employee regarding the required information, and he still won't provide it, then you should not have any obligation under FMLA or ADA. As an employer, you are required to have a dialogue with the employee, but the employee must uphold their end and provide information to you so that you can determine whether or not any of these laws apply. You are not required to guess.[/quote]
In my opinion, that's pretty aggressive given the facts as we know them so far. The employer is obligated to provide written notification about FMLA assignments. We still do not know if the employer has FMLA obligations. We still do not know if the employer has a FMLA policy. We still do not know if the employer has provided any written FMLA communication. If there are FMLA obligations, the employer isn't really entitled to a "doctor's note", although that in part depends on how your policy is written if you have one. However, the employer can require a certification, which will provide most if not all the information the employer seeks.
The requirement to engage in a dialogue stems from ADA. We know the company has at least 15 employees, so it sounds like ADA applies. The Company has merely asked for a Doctor's note, that's not the same as entering into a dialogue about accomodating a disability. We do not know if the employee is a qualified individual with a disability.
[quote user="jvoigt"]If you have not followed up with the employee about the deadline, then I would suggest you do that. I would also establish a firm deadline for him to return the paperwork--no excuses. If he doesn't return it, then proceed under your policies. Has he exceeded his available sick time? Do you have a policy in place that deals with excessive unscheduled absences? [/quote]
I would definitely follow up on deadlines, but it's not clear to me that the employer's deadline was appropriate. We don't have enough information to know what statutes apply, although ADA seems possible. If FMLA applies, then the employer has to work with the employee if the reasons why he cannot timely obtain FMLA paperwork are out of his control. The base note writer has said that his condition prevents him from doing what is required to get a doctor's note. I will say this: in my experience, doctor's will generally fax employers if they have already seen the employee and are aware of their condition. Doctor's will not generally fax notes regarding patient issues they have not become familliar with through the examination process.
I hope the base note writer does have an attendance policy because that will be needed whether the employee is covered by FMLA or not. jvoigt's methodology for establishing attendance boundaries can work really well if your company has static enough scheduling and sufficient time recording and reporting equipment to keep track of it. At our company, schedules vary too much for individual employees over time to be able to rely on a target number of hours worked without adding considerable administrative overhead so we use a different method. Whatever method the base note writer may choose, I agree 100% with jvoigts point that you need an attendance policy. I also agree 100% with jvoigt that you should consult with counsel because it sounds to me like you do not have a lot of experience with the technical issues involved here or enough resources available to you to deal with this situation in a timely manner.
ADA and FMLA are both documented on the Department of Labor's website but, unfortunately, their documentation is only a small part of the overall picture.