In Yesterday’s Advisor, Steven T. Collis, an editor of the Colorado Employment Law Letter, presented the first two of five steps to reduce your risk of a lawsuit when an employee blindsides you with previously undisclosed information (e.g., a medical condition or new complaint of harassment) during a disciplinary meeting. Today, Collis provides the three final steps for smooth sailing through this odd situation.
Step 3: Provide leave and benefits to which the employee is legally entitled. Once an employee informs you of a medical condition, disability, or other concern, your best bet is to provide him or her with the leave, reasonable accommodations, or other benefits to which he or she is entitled.
Although it is frustrating that the employee waited until a disciplinary meeting to inform you of his or her medical condition, you now have knowledge of that information, and you can’t put the genie back in the bottle. Sure, you can try to defend against potential claims by proving that you didn’t have knowledge of the employee’s condition when the discipline or termination decision was made, but that sort of defense is fact-specific and will be difficult to establish early in litigation. To avoid potential liability, offer the employee the leave and benefits to which he or she is entitled.
Unlimited employee HR training—one low cost, no setup, no software to install. Find out why the Software & Information Industry Association voted TrainingToday® the “Best Workforce Training Solution.” Go here for more information or to sign up.
Step 4: Be patient. It’s tough to back off planned discipline and “be nice” to a poorly performing employee while he or she is on leave or is receiving medical treatment. It’s especially difficult when you suspect the employee is manipulating the law to avoid getting fired or being placed on a performance improvement plan. But be patient.
Let the employee’s workers’ comp claim or FMLA leave run its course. At that point, the employee must come back to work and meet your standards. If the employee’s condition does not allow him or her to return to work, consider whether the employee has a disability that is covered by the Americans with Disabilities Act.
If so, engage in an interactive process to determine whether a reasonable accommodation would permit him or her to perform the essential functions of his or her job. Reasonable accommodations may include providing additional time off for the employee to complete medical treatment or recover, but you are not required to provide an indefinite period of leave. If you are patient and provide all required benefits until the employee is exhausted, you will often be given clear low-risk options for resolving the situation.
No time to prepare or deliver training? With BLR’s TrainingToday®, your employees can start taking essential training courses the same day you sign up. Workers (and supervisors) train at their convenience, 24/7. We track and you save with this turnkey solution. Yes, it really can be this simple. Learn more.
Step 5: With proper documentation, proceed with discipline or termination. An employee who engages in misconduct or performs poorly does not become “untouchable” simply by having a medical condition or asserting a harassment complaint. You may still hold the employee to your performance and conduct standards.
First, make sure you have communicated your standards to the employee through a handbook, training, and performance reviews. Second, ensure that the employee’s infractions or performance issues are properly documented in an objective fact-based manner.
Third, treat the employee the same as other employees who have engaged in similar misconduct or who have had similar performance issues. Meeting those criteria will minimize the risk that the discipline or termination will result in liability.
Bottom Line
Disciplining or firing an employee is rarely risk-free. Taking such action after an employee reveals a medical condition or disability, or points to another concern raises the stakes even more.
However, you can minimize the risk of a lawsuit if you stay calm, follow your policies, and provide the employee the benefits to which he or she is entitled. Take each new development step-by-step to reduce the chance that you will need to defend your decisions in court.