Excessive absenteeism, Cance and ADA concerns
djlief
5 Posts
I am the Director of Operations for a small company (29 employees) in Texas. I have an employee that I recently did a documented counseling for excessive absenteeism and failure to notify her supervisor (me) of absence. Employee was hired 3 years ago into a medical billing manager position (salaried). Within a few months of being hired she was diagnosed with breast cancer and underwent a radical mastectomy with follow-up chemotherapy, etc. She suffered several complications and ended up being off work a tremendous amount. Throughout this entire illness episode the owners of the company paid her her full salary. They never docked her for time off - they are exceptionally generous people. Things went well for a year or two (she did have frequent physician appointments) but she was able to get her work done by staying late and reportedly working weekends. The company has grown a lot in the last 2 years and the Billing Manager position has become more and more critical to the day to day success of the company (timely billing, collections, payment auditing, etc.). Approximately 8 months ago this employee came to me and told me she had been diagnosed with pancreatic cancer but that they had caught it early and she would only be taking some oral chemo agents. Since that time her attendance has become a real problem. She always seems to have a 'flare up' of her symptoms on the Friday's her husband is going out of town to participate in a shooting match (coincidence?), she also ends of taking days off for bizarre, off-the-wall personal reasons. She has used all of her sick time and is actually in a negative balance column with her PTO time. She remains salaried. Recently I counseled her on excessive absenteeism due to her taking 4 days off because she had to suddenly vacate her home. She also left the work place and went home the day she got back from this absence due to her adult children being locked out of the new house. She lives a good distance away from the office so she would not be returning to work that day. Due to not notifying me, her immediate supervisor, of her leaving the work place I was able to document and write her up on this offense and added the excessive absenteeism. A few months ago she had signed a work agreement recognizing that her work hours are 8-5, M-F. Due to the growth of our company, after hours work and weekend make-up work puts an undue hardship on the company. Yesterday she left work saying that she didn't feel well that it was probably due to her chemotherapy - this is 1 week after the documented counseling. Several employees said she was in her office throwing up, but when I went in to talk with her there was no vomit in the trash can (this is a medical clinic). She wanted to stay and work and I told her that was her decision (it was already 4:00 PM). Today she texted me and said she had a fever of 102 and wouldn't be in. I would like to do a final counseling on absenteeism with her - not terminate, but let her know this is her second strike. However, I'm concerned about ADA issues based on her remark about the chemo. We do not have 50 employees so I know FMLA is not applicable but when I research ADA and cancer on the internet I get a lot of contradictory information. Does anyone have any experience with cancer and ADA? Even though an employee may be legitimately sick (which I really question due to a number of other reasons), can I still terminate someone for excessive absenteeism. I don't think she will make the mistake of not notifying of absence again and I do want to terminate this employee as her performance is negatively impacting the company and the situation seems to be getting worse and worse.
Comments
Typically, ADA does not require that you permit absenteeism as a reasonable accommodation although a brief leave of absence for recovery can sometimes be required. It's easy to get caught up in confusing FMLA illness with ADA disability. Merely having a FMLA qualified condition does not by itself invoke ADA. The biggest problem here is that it sounds like you don't have a policy in place or, if you do, you have not implemented your own policy. If that's true, you need to establish some "line in the sand" communicating her current status and how future events will be handled. Establish that in writing and get her to sign it. I don't think you have an ADA situation on your hands but I do think you have a policy or policy implementation problem.
Whether or not you can terminate safely and fairly has a lot to do with what's in your handbook. A problem people run into when they are "very generous" in the beginning of a serious health problem is that there's no clear information about how to handle the next one for that employee or any other. Feel free to contact me at txhrperson a t yah00 dot c0m if you want to talk in more detail.
TXHRGuy is correct. This appears to be a policy control matter. However, some FMLA serious health conditions also qualify as an ADA disability. Most cancers and serious strokes qualify as both. Since this employee suffers from cancer, this would be the case. To be sure an employee's condition in fact qualifies as a serious health condition under the FMLA, or as a disability under the ADA, an employer is entitled to get a medical certification to that effect from the employee. Did you get the certification?
Also, if an employee qualifies for protection under the ADA and for FMLA leave, you may not require the employee to accept a reasonable accomodation that enable the person to work in lieu of taking unpaid FMLA leave. However, as mentioned by TXHRGuy, if all upaid leave is exhausted, you are required to consider whether a leave of absence is a viable reasonable accomodation. However, unlike the FMLA, the ADA does not guarantee a disabled employee the right to take leave, it simply requires that you make a reasonable accomodation that enables the employee to perform the essential functions of the job, provided it does not cause you undue hardship. If attendance is an essential function of an employee's job, ADA leave may be out of the question. The considerations in determining whether attendance is an essential function of the job, (i) the time sensitive nature of the job, (ii) and can the duties be accomplished in the employee's absence in a timely manner without negatively impacting customer service or unduly burdening other employees.
Sounds like the employee's abscense, given the growth of the company, would unduly burden other employees, and negatively impacts customer service. Also it sounds as if you have documented everything well. Given that, I think termination may be an option. Just my thoughts, hope it helps.
Thank you so much for your reply - we are still slugging it out here. Her attendance has improved, but I expect it will begin all over again now that the holidays have passed.
No, Texas doesn't have a state version of FMLA so it follows federal at 50 employees. So no, you would not need to be worried at all about FMLA unless you grow.
Under ADA, the employer is required to interact regarding reasonable accommodations. And is allowed to request medical documentation regarding them. I wouldn't terminate without documenting this step has happened...and it's hard to say for sure that it has. And only absences due to the ADA-qualifying condition would be protected -- not moving, having kids locked out of the house etc. I would start the documentation rolling by providing her doctor with a copy of her job description and asking what accommodations are necessary. Just realize that you don't have to provide the exact accommodations, but do have to consider ones that will work. Then decide if these or other accommodations cause "undue hardship". At this stage, I would suggest spending the $ to have a local employment/labor law attorney look over the situation before deciding to terminate.
One last thing to consider is how you have treated other employees who have taken timeoff for the same reasons (moving, kids, etc) to make sure that you are being fair/nondiscriminatory.
Agreed...but in some cases, small amounts of timeoff can be considered a reasonable accommodation and if they are, then they would be protected time...especially if the employer lets other employees miss or take timeoff (paid or unpaid) for other reasons in small amounts that don't have a qualified ADA disability. Easier to argue if the employer requires other employees to take PTO in large increments or something such as that.
I have a really great article I found that talked about interaction between FMLA and ADA and how the timeoff interacted or was available. I will try to find it and post it tomorrow. Because there have been court cases in the different circuit courts that have gone both ways on this issue (timeoff as a reasonable accommodation).
Here's the article that I referenced: eeoc.gov/policy/docs/fmlaada.html and here's just one exerpt:
"Under the ADA, a qualified individual with a disability may work part-time in his/her current position, or occasionally take time off, as a reasonable accommodation if it would not impose an undue hardship on the employer. If (or when) reduced hours create an undue hardship in the current position, the employer must see if there is a vacant,equivalent position for which the employee is qualified and to which the employee can be reassigned without undue hardship while working a reduced schedule. If an equivalent position is not available, the employer must look for a vacant position at a lower level for which the employee is qualified. Continued accommodation is not required if a vacant position at a lower level is also unavailable.24 "
It does get back to defining reasonable accommodations and proving "undue hardship" on the part of the employer. Hence, my recommendation that you pass the situation by an attorney before terminating the employee. Better to spend the $s now then face an EEOC claim and pay $$$$ later.