Can we make counseling a requirement?
4654424
4 Posts
We have an employee struggling with some straining personal problems. She is on several types of medications and one or more causes her to be sleepy and a "zoombie". She admitted her condition to several employees but did not approach HR or management. One of her fellow co-workers approached their manager because the employee's state after the medications on her job performance. She has also had to be out on different occasions due to her personal issues or the state the medication puts her into.
We would like to require her to go to counseling so she can cope better and be able to perform to the standards of the job. Are we allowed as an employer to require counseling?
Secondly, with ADA, what accomodations do we need to make? I know mental illness is covered but am unsure of accomodations to be made in the case of mental illness.
Thirdly, any advice on how to avoid discrimination would be great.
Fourthly, if you could cite employment laws or ADA, that would be great. I do need to be able to prove to the employee if we are allowed to make the requirement.
Thanks for any help. We desire to walk gently in this incident and help our employee to the best of ability.
Tabatha
Comments
Here are some questions that will help guide us to provide better answers:
Does FMLA apply to your company?
Is this person eligible for FMLA?
Does this person's condition qualify for FMLA?
Is this person a qualified individual with a disability? (There's no discussion of accomodation without answering that question)
Do you have STD/LTD coverage for this person and would her condition qualify?
We have less than 50 employees so FMLA does not apply.
She does have a disability and is a qualified individual with a disability. We do cover her with both STD and LTD. I would have to check to see if she would qualify.
The main issue is that her work performance is of a lesser standard when she is on this medication. The medication is taken as she needs it. She takes it when feeling aggressive. The problem is that it all but puts her to sleep. Counseling would help her cope with aggressive feelings. We have a drug and alcohol policy but there is no policy in place when one's work is affected by a prescription drug. We would like to require counseling as part of her corrective action plan but are unsure if we can do so.
Let me know what else you need to reply.
I think that is a good idea. Thanks.
[quote user="IT HR"]Now that you are talking about a possible ADA issue I would consult an attorney. This sounds like it could become a very sticky situation and I think the best course of action is for your attorney to get involved.[/quote]
I think it's more likely than not that you have an ADA issue. You can force counseling through your EAP if you have one as long as you are paying them during the time they are not working. I agree with IT. Call a legal beagle.