We employ less than 20 employees. We have one employee who frequently calls in or has to leave due to “panic attacks.” She has been late for work over 30 times and has called in sick 7 times in the past 6 months.
She has indicated that she is on medication. She has also been counseled on disruptive behavior, including the statement that she wanted to punch a co-worker.
What are our options here? May I put her on 90-probation for attendance and/or coming to work late and dismiss her if she misses during that period? May I ask her physician the nature of her illness for said sick leave?
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Thank you for your inquiry regarding disciplining an employee who has demonstrated attendance and conduct issues, but who may also suffer from a mental illness.
Because your workplace has fewer than 50 employees, we will focus on the application of the Americans with Disabilities Act (ADA) rather than the Family and Medical Leave Act, which does not apply, here.
In the situation you have described, it is likely that this employee would qualify as an “individual with a disability” under the ADA. From this, she would be protected from discriminatory acts made solely on the basis of having or being regarded as having a disability. So she could not be terminated simply for “having panic attacks” or for needing to take medication or sick leave to manage her mental illness. However, this does not mean that she cannot be disciplined at all.
First, individuals are only protected by the ADA to the extent that they are qualified individuals – in other words, qualified to perform the job. What this means is that the employer may still discipline, discharge, or deny employment to an employee whose disability impairs job performance or conduct to the extent that he or she is not “qualified” (with or without a reasonable accommodation) to perform the essential functions of the job.
In addition, employers generally have wide latitude to develop and enforce conduct rules – especially rules that prohibit violence or threats of violence. If a rule is consistently enforced and is job-related and consistent with business necessity, then the rule (and appropriate discipline) may be applied. This remains true even if the employee’s conduct is caused by his or her disability.
With all of this said, the simplest way to look at the situation is to note that your role as an employer is not to diagnose the employee’s illness but, rather, to deal with the performance, conduct, or safety problem in the workplace and to take appropriate disciplinary action. For example, if the employee’s work is unreliable, if the employee is often absent or late, or she is threatening other workers, then these specific matters – not the underlying cause – can and should be addressed as they would be for any other employee. However, you must be careful not to create the appearance that the employee is being disciplined or discharged because she has a disability or needs to take medication for her illness.
When managing employees with discipline and conduct issues, this EEOC guidance document on Applying Performance and Conduct Standards to Employees with Disabilities is extremely helpful. Specific examples relevant to your situation are provided under section “B. Conduct standards.”
Finally, we must caution against asking the employee’s physician for information regarding her medical leave. An employer may ask an employee to provide a doctor’s note or other explanation for the use of sick leave as long as it has a policy of doing so for all employees. However, employers should not ask for documentation unrelated to the use of sick leave or for more information than is necessary (such as specific details about the nature of the employee’s illness) to justify approval of a sick leave request. A statement from the doctor that the employee was absent because of a medical condition is sufficient and employers should not ask for a diagnosis or information about the medical condition.