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Unfit to Work
posted at 10/4/2011 1:58 PM EDT
on Workforce Management
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Posts: 3
First: 10/4/2011 Last: 1/20/2012 |
Within the last week, a long-term employee's performance and personality has drastically changed. She reports to work with watery eyes and physically sluggish, which translates to lack of focus on her work, decreased productivity, and clumsy movements (even while walking & she works with sharps). She told her manager she was dizzy and needed to take a break which she did. After 30 mins, it seemed her appearance had gotten worse so her manager sent her home (she felt she was okay to drive though?). This was not an isolated incident, she continues to exhibit the above traits, which is becoming a safety issue and concern for management. In MI, we can legally require random drug testing; though this could potentially have "invasion of privacy" ramifications. Beyond this, we are unsure of our legal limits as she has not requested any accomodations or time off. She continues to report to work as scheduled. She also confided in ownership that she believes she is depressed, but has not been diagnosed. This is becoming a very touchy issue...any advice??? |
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Re: Unfit to Work
posted at 10/6/2011 2:39 PM EDT
on Workforce Management
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Posts: 174
First: 9/20/2011 Last: 2/11/2013 |
In my opinion she has shifted the risk to you in a couple of ways: 1. She confided to the company that she is depressed. 2. She displays symptoms that are not normal behavior. Dizziness, being clumsy. 3. She works with sharp instruments 4. She continues to display these behaviors. Can you imagine explaining to an government inspector, judge, attorney or jury why you did not take action? Guilty, guilty, guilty. Just be prepared to write a large check when something goes wrong....... Advice: 1. Put her on leave until she provides you with a doctor's note saying she is fit for work. Make she provides the doctor with a copy of the job description. Alternatively you could send her to the company doctor and do the same thing. Either way do not permit her to come back to work until you have medical release. 2. Do you have an EAP? Give the brochure to her and tell her there is no charge to call and speak to a counselor. 3. Train all your supervisors on how to handle these situations and the risk of inaction. |
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Re: Unfit to Work
posted at 10/13/2011 11:05 AM EDT
on Workforce Management
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Posts: 1
First: 10/13/2011 Last: 10/13/2011 |
While I agree with the previous post and the concept of fitness for duty, this sounds like possible reasonable suspicion to me -- NOT RANDOM, which requires an equal chance for all employees or safety sensitive employees in most states and programs. Still, before you could order her to do this test, you need to ensure you have a drug-free policy or some other language in your employment policies which permits this and be sure you follow it, including informing the employee what you are testing for. You should indicate to them when testing that this is just to gain further information. Also, this is clearly a performance issue as well as a safety issue as she doesn't seem able to perform her important duties with level of care required and isn't demonstrating adequate focus and attention. Without a policy in place to inform her of the consequences, you have a problem if she tests positive and a different one if she doesn't. An EAP could help address the depression but if she has sleep issues and/or other minor sinus issues causing vertigo symptoms that otherwise are not clearly visible. Better practice is fitness for duty requirement for the position and to document why it seems she isn't according to what is observed. Clearly document (articulate) in writing these details including any info she has given you. Give her a timeline to return well and ready to perform or advise her what she needs to do have an assessment by a physician to assist you in evaluating her ability to perform light or other duties until she can be fit for duty, safe and perform the job as required and expected. |
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Re: Unfit to Work
posted at 10/13/2011 3:36 PM EDT
on Workforce Management
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Posts: 1
First: 10/13/2011 Last: 10/13/2011 |
All good suggestions. Just a word of caution. If your company doesn't have a drug-free policy or suitable language in your employment policies, don't create one to use in this situation. Seek the advice of an employment attorney if you are uncertain. |
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Re: Unfit to Work
posted at 10/13/2011 4:06 PM EDT
on Workforce Management
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Posts: 1
First: 10/13/2011 Last: 10/13/2011 |
That you, managers, and ownership are aware of a 'possible' disability shifts the responsibility to the company and places it in a precarious position. It's no longer just about performance and safety. Before forcing a leave of absence, I would hope that you have first spoken to your legal counsel. |
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Re: Unfit to Work
posted at 10/13/2011 8:18 PM EDT
on Workforce Management
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Posts: 1
First: 10/13/2011 Last: 10/13/2011 |
I would not forceably put her on leave as that could be perceived as discrimination. The first step is to speak to her and bring to her attention the changes noticed and the comment about being depressed. Others are correct in that the ball is now in the company's court so you are now required to take action. If her performance is declining due to what sounds like a disability, as one or more of her major life activities is affected, she is protected under the ADA and it's amendments and cannot be automatically fired. You need to have an interaction with her to find out what she believes she can and cannot do. Provide her with a copy of her job description and hopefully your company has a form that her doctor can fill out that indicates what she can and cannot do based on the essential job functions. Attempting to document this person could be easily construed as discrimination due to her disability that you "heard" about. If you are unsure of what to do, I strongly suggest seeking legal counsel as this is a legal minefield you are walking through. One wrong step and you and your company are blown to bits. |
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Re: Unfit to Work
posted at 10/14/2011 3:11 PM EDT
on Workforce Management
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Posts: 1
First: 10/14/2011 Last: 10/14/2011 |
have her Manager and or Hr sit down with her and point out her behavior, performance concerns. let her know you are seeing changes. offer EAP. done right she will understand that she either gets help or may be out of a job |
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Re: Unfit to Work
posted at 10/17/2011 1:01 PM EDT
on Workforce Management
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Posts: 5
First: 10/17/2011 Last: 10/17/2011 |
This is an issue many employers find themselves confronted with -- how to handle an employee who is exhibiting unusual behavior, which may or may not be attributable to drug or alcohol use. The question of how the employer responds, of course, depends upon applicable federal, state and local drug testing laws and the employer’s drug and alcohol testing policy, which should always be developed with appropriate legal advice and counsel to ensure compliance with applicable laws and to fully meet corporate objectives. |
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