We hired an employee at the beginning of this year to work the front desk of our medical office. She worked for 10 days, but has been out sick sporadically (with doctors notes) since then.
When she has been in the office, she hasn't performed very well and we see that she is not a good candidate for this position. She uses her cell phone, works very slowly and shows no initiative. It's all very discouraging.
My other employees are working harder than usual to pull her weight. I want to hire a replacement ASAP, but don't want to break any medical leave laws. What should I do? Is it legal to fire an employee for calling in sick too often?
Needing a New Employee
My first question for you is: do you have an absentee policy? Every business needs a policy that dictates how many days employees can miss due to illness, what procedures to follow and when to bring a doctor's note.
Legally, an employee—even one that's stricken by some horrible disease—isn't covered by the Family and Medical Leave Act (FMLA) until they've worked for a company for at least a year, so you're not obligated to hold her position open while she takes care of her medical issues.
The Americans with Disabilities Act (ADA), though, is a different story. If your company has more than 15 employees, all workers are eligible for protection on day one. If your new employee has a serious disability that results in these absences, you're required to make a "reasonable accommodation" for her.
What is reasonable? That depends on the job. For instance, it's reasonable for an accountant with migraines to work in a quiet, dim area or have a special computer screen. It's not reasonable for a bartender in a dance club to work in a quiet, dim area.
Absences can sometimes be considered reasonable, but most likely not for the employee you've described. As a front desk worker, being on site is a core function of her job, so excessive absenteeism wouldn't be considered a reasonable accommodation.
With that said, unless you live in Montana, you're in at at-will state, so you can let your employee go whenever you choose to do so. It's rare to do this without warning, however, so here's what I recommend instead.
Focus on her behavior at work, not the absences. Even though it's unlikely that she's covered by any legal protection, there's a chance that the reason she is calling in sick so often is because she has suddenly developed a serious illness—it's certainly not her fault, and we should attempt compassion.
Sit her down and say, "Jane, you're on your cell phone often. You show no initiative. Other people have to work harder to make up for your work ethic. We are going to put you on a performance improvement plan (PIP)."
Present her with a formal document that states the areas she needs to improve and ask her what training or help she might need. Then, make it clear that she has 30 days to change her ways and meet all of the conditions of the PIP. Warn her that if you don't notice a difference, you'll terminate her.
If she starts complaining about her health, say that you understand, but explain that she still has to meet these conditions within 30 days, ill or not.
And, in the meantime, put together an absentee policy and follow it strictly. When rules are clearly laid out, it makes it easier for employees to separate right from wrong behaviors, and gives employers the right to dole out consequences when rules are not followed.
Suzanne Lucas, Evil HR Lady
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