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Guidance needed-ADA and paranoia
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Guidance needed-ADA and paranoia
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I have an employee that we have been struggling with for over a year. Issues began when a co-worker/friend was promoted to be her supervisor; now, a year later, we have had several issues with he
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Forums » Topic Forums » Legal Forum » Guidance needed-ADA and paranoia
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Guidance needed-ADA and paranoia
posted at 10/13/2011 10:24 AM EDT
on Workforce Management
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Posts: 2
First: 10/13/2011 Last: 10/20/2011 |
I have an employee that we have been struggling with for over a year. Issues began when a co-worker/friend was promoted to be her supervisor; now, a year later, we have had several issues with her complaining that she's not exempt, she can't work from home, her supervisor is targeting her, her director is targeting her, etc. Whenever we have a conversation to investigate her claims we find that they are unsubstantiated and then we have follow-up conversations with her to evaluate what really happened, how she interpreted interactions, and so on. A few months ago it was brought forward that she likely has a mental instability, depression and paranoia of some kind, which explains her claims, but she refuses to follow her doctors recommendations for treatment. To our end we have offered her FMLA (which was denied by our FMLA administrator due to lack of supporting information) and ADA (which was completed by her physician but does not offer any accomodation we can reasonably make). She is on a performance action for her attendance as every time she feels she's being "threatened" by something she calls in sick for days on end, but when she calls in she gives a different reason for being out so we can't tie it back to her disability. At this point I don't know what to do except continue to address it from a disciplinary standpoint and possibly do a hard referral to our EAP as it is seriously affecting her work performance and causing strain on business operations. I don't want to put us in a legal liability situation and I can see danger on this one from every angle (especially since she says she will never quit and we'll have to fire her-I can't help but think she's trying to set us up). Does anyone have experience with a similar situation? |
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Re: Guidance needed-ADA and paranoia
posted at 10/13/2011 11:57 AM EDT
on Workforce Management
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Posts: 180
First: 9/21/2011 Last: 5/14/2013 |
Document EVERY interaction. Document every discussion and every form that she has not returned. Document how much timeoff she has missed. (If you have terminated other employees for less unapproved timeoff, document that..because that could help prove that you did try to accommodate with extra timeoff) The employer is responsible under ADA for working with the employee and engaging in meaningful dialogues back and forth, but if you have enough documentation on the fact that she is not working with the employer, that helps your case. I would make absolutely sure that you are being "fair" in the statement that "her physician doesn't offer any accommodation you can reasonably make". I would try to see if you can't come up with some accommodations that could at least be explored. Or make sure that you aren't just outright saying NO rather than truly considering them. Although I am not sure what accommodations you could make outside of protected time off...especially without documentation under FMLA. Part of the thought process in the end might also be -- why did you keep her so long? Sometimes keeping a problem employee around can also be an issue. After documenting the whole situation, I would run it by an employment law attorney who is familiar with ADA and FMLA to make sure you have done everything possible and then I would terminate as soon as possible if there are no real accommodations that can be made. |
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Re: Guidance needed-ADA and paranoia
posted at 10/13/2011 2:14 PM EDT
on Workforce Management
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Posts: 215
First: 9/20/2011 Last: 5/14/2013 |
In Response to Guidance needed-ADA and paranoia: I have an employee that we have been struggling with for over a year. Issues began when a co-worker/friend was promoted to be her supervisor; now, a year later, we have had several issues with her complaining that she's not exempt, she can't work from home, her supervisor is targeting her, her director is targeting her, etc. Whenever we have a conversation to investigate her claims we find that they are unsubstantiated and then we have follow-up conversations with her to evaluate what really happened, how she interpreted interactions, and so on. A few months ago it was brought forward that she likely has a mental instability, depression and paranoia of some kind, which explains her claims, but she refuses to follow her doctors recommendations for treatment. To our end we have offered her FMLA (which was denied by our FMLA administrator due to lack of supporting information) and ADA (which was completed by her physician but does not offer any accomodation we can reasonably make). She is on a performance action for her attendance as every time she feels she's being "threatened" by something she calls in sick for days on end, but when she calls in she gives a different reason for being out so we can't tie it back to her disability. At this point I don't know what to do except continue to address it from a disciplinary standpoint and possibly do a hard referral to our EAP as it is seriously affecting her work performance and causing strain on business operations. I don't want to put us in a legal liability situation and I can see danger on this one from every angle (especially since she says she will never quit and we'll have to fire her-I can't help but think she's trying to set us up). Does anyone have experience with a similar situation? Posted by jennisess Many of the issues you discuss do not seem to be related: 1. Is she exempt? 2. Is she supposed to work from home since she says she can't. Is this a job requirement? 3. How do you know what her "doctor's orders" are that she is not following? Did she provide them to you? 4. When she (or anyone) calls in sick what are the validation requirements? Are you asking for a doctor's note each and every time before paying her? It is not your job to tie it back to her disability. 5. Why do you think she is actually disabled? has she stated she is? Has she asked for an accomodation of any kind? Did her doctor? |
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Re: Guidance needed-ADA and paranoia
posted at 10/20/2011 10:39 AM EDT
on Workforce Management
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Posts: 2
First: 10/13/2011 Last: 10/20/2011 |
In Response to Re: Guidance needed-ADA and paranoia: In Response to Guidance needed-ADA and paranoia : Many of the issues you discuss do not seem to be related: 1. Is she exempt? No, she is not exempt. 2. Is she supposed to work from home since she says she can't. Is this a job requirement? No, she is not allowed to work from home and that is her complaint--she wants to work from home and we won't allow it. 3. How do you know what her "doctor's orders" are that she is not following? Did she provide them to you? She advised us during our last meeting with her that the doctor had recommended hospitalization but she that she is refusing. 4. When she (or anyone) calls in sick what are the validation requirements? Are you asking for a doctor's note each and every time before paying her? It is not your job to tie it back to her disability. Since she is not approved for FMLA we do require her to provide a doctor's note to return to work, however we cannot require it to spell out specifically why she was out, only that she is released to work with no restrictions. 5. Why do you think she is actually disabled? has she stated she is? Has she asked for an accomodation of any kind? Did her doctor? Her doctor has provided ADA paperwork supporting the fact that in the physician's opinion, she does qualify for ADA, however she did not provide any accomodations other than "time off as needed". We have evaluated other possibilities such as modified schedules, decrease in workload, changing schedule status (FT to PT), but none of these are "acceptable" to the employee and when we offer she says she doesn't need anything. At this time it is not a reasonable accomodation to let her miss work whenever she wants and we can't accomodate a work-from-home situation. Posted by howard7 |
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Re: Guidance needed-ADA and paranoia
posted at 10/20/2011 2:35 PM EDT
on Workforce Management
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Posts: 215
First: 9/20/2011 Last: 5/14/2013 |
4. When she (or anyone) calls in sick what are the validation requirements? Are you asking for a doctor's note each and every time before paying her? It is not your job to tie it back to her disability. Since she is not approved for FMLA we do require her to provide a doctor's note to return to work, however we cannot require it to spell out specifically why she was out, only that she is released to work with no restrictions. I am no expert but.... if she is returned to work with no restrictions then no accomdation is needed. 5. Why do you think she is actually disabled? has she stated she is? Has she asked for an accomodation of any kind? Did her doctor? Her doctor has provided ADA paperwork supporting the fact that in the physician's opinion, she does qualify for ADA, however she did not provide any accomodations other than "time off as needed". We have evaluated other possibilities such as modified schedules, decrease in workload, changing schedule status (FT to PT), but none of these are "acceptable" to the employee and when we offer she says she doesn't need anything. At this time it is not a reasonable accomodation to let her miss work whenever she wants and we can't accomodate a work-from-home situation. I would go back to the physician, make sure the physician has a copy of the complete job description and ask for 1. Some details as to what parts of the job she cannot perform without accomodation and 2. what specific recommendations does the physician recommend. |
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Re: Guidance needed-ADA and paranoia
posted at 10/25/2011 3:38 PM EDT
on Workforce Management
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Posts: 1
First: 10/25/2011 Last: 10/25/2011 |
I have encountered similar question. In Canada, an employer can request an independent medical evaluation (IME) to validate her request. In sum, I would confirm what you have offered to date and further confirm that "working from home" is her proposed accommodation. Sometimes, requiring the employee to cooperate with an IME forces the employee's hand. The purpose of the IME would be to obtain a report as to whether the employee has a medical condition triggering the obligation to accommodate and if so, whether there is any reasonable accommodation and if so, what is it. Good luck -- these are very tough cases. The doctor will give some guidance that both employer/employee will have to live with. |
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Re: Guidance needed-ADA and paranoia
posted at 2/29/2012 1:23 PM EST
on Workforce Management
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Posts: 4
First: 2/29/2012 Last: 8/7/2012 |
We have a long time employee (female) that was returned to a rotating shift from a straight day shift (17.5 years). She currently has been on shift for approximately 4 years. During this time there was a claim of sexual harrassment which was validated and the necessary steps taken in terms of discipline and moved her to another team. This individual has contributed greatly in the past and I would say that her performace is good. Let me outline a few areas of concern: The individual was placed on shift with no written plans in place for her training just a 1 page MATRIX no discussions, She was avoided by her then peers because she was in a leadership role, decreased pay over a 12 month period by $6.00, She was not talked to by her Team Leader (at that time) avoidance was noticable, and then the claim of sexual harrassment. She has been placed on action plans mainly for abseentism & performance. Her performance is actually good however she avoids the operations consultant (rising Team Leader) When it was refered to as performance it truly boiled down to creating an action plan to validate explaining a complex system in front of 5-6 individuals of which she had clearly communicated to the Ops Cons. she was not ready. Facts: Only had 56 days to validate age 45; nature of illness PTSD; Current ops placed her on an additional action and again 2 weeks later and then sent the individual home this was the second occurance of suspension with in less than 4 months. While stating loudly that he was having her terminated. I would say that we are in for a EEOC Suit that is unavoidable due to the actions of this front line leader. Any stones anywould like to throw? |
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Re: Guidance needed-ADA and paranoia
posted at 2/29/2012 2:39 PM EST
on Workforce Management
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Posts: 180
First: 9/21/2011 Last: 5/14/2013 |
Did she claim she was being harassed or was she the harrasser? I am confused on that point. If she was not the harraser, why was her shift changed/demoted and why was she the one moved? That could be seen as retaliation for making the claim. If she was the harrasser, I am not seeing any issues with the punishment. The employer could have decided to terminate her then and there with no issues. There is no requirement to place her for training in the new shift unless it is policy to do so and retaliation for filing the harrassment claim. If she was a prior leader, I am surprised she didn't already have the training needed. Also one reason that companies hate to demote is that it is a very hard adjustment for both the employee and other employees and the new boss. I've NEVER had one go smoothly. Did she claim ADA coverage for PTSD and when? What accommodations did she ask for and what accommodations did you give? Any employee can be held to performance standards regardless of any prior claims. As the employer, you have to make sure that you are not using the claims as any reason for the bad performance. If another employee had not had a presentation ready, would they have been on action and then suspended? If another employee avoided their Team Leader, what would the consequence be? Just some thoughts. My opinion definitely hinges on whether she was the harrasser or not. |
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