Employee Medical Condition

[Shilah]

We have an employee who has been off work for over a week and the only medical reason we have is that she is under a doctor's care and the return to work date is to be determined.  We have had to take this employee's work and redistribute to the rest of the staff and it is starting to cause a problem as we are all trying to do our jobs as well as the extra work.  We are an Ohio employer; 39 total employees so we are not subject to FMLA.  We are not even communicating with the employee; we are getting limited information from the mother and she is stating that she doesn't know what's wrong; the doctor's don't know etc...they are running tests.  We are finding this hard to believe and wondering what is going on.  We have been trying to be accommodating and are concerned but we have no return to work date and we are unsure as to what is even going on.  My boss is wanting to terminate her employment and asking me to find a legal way to do it.  It may sound cold hearted as she is a good employee but we are just not getting any answers and are afraid that this employee will be out for an a while and we don't want to guarantee to hold her job until she comes back as we can't keep stretching everyone so thin.  What advice can you give as to how to handle this situation.  Any feedback would be most appreciated!

ANSWER: Joni,

Since FMLA doesn't apply, and I assume the employee isn't missing time due to a pregnancy or complications resulting from such, then you are free to cut her loose for missing too much time because she is most likely an "at will" employee in Ohio.

"At will" means either the employee or the employer may sever the employment relationship with or without notice and at any time for any or no reason whatsoever.   Of course, this is excluding obvious firings for reasons that are discriminatory, against public policy or when there is an implied contract for employment.  In Ohio, the last item- implied contract- is the important component.    As long as there is no history of the employer promising work or implying a certain term of employment(such as , " Don't worry Sally,  there will always be a job for you here at XYZ company")  then the employer can cut her loose.

Just follow your written policy for absences.  If it is too loose and just says you need a doctors note,  then you can just lay her off.     Why lay her off and not fire her for missing too much time ?

Unemployment.  Make it effective tomorrow- Friday 1/22/2010.    (Remember, she will be eligible to sign up for COBRA- and those notice requirements changed  two weeks ago.  Deadline is Feb 15th for your company to get all the new notices in order.)

If you lay her off and state the reason as being "employee is unable to work due to medical reasons",  then she will also not be eligible to collect UC.   If you just fire her for missing time,  then she may be eligible to collect UC.    Keep the documented attempts and times and dates of when you tried to reach the employee.   You will need to PROVE as the employer that you attempted to offer solutions and if the employee only would have returned your calls or kept in touch, the understandings would be different.  So,,  without her follow up,  the employer is only left with limited information; and the choice to lay her off because she is unable to work due to health reasons is the only solution.

Of course, you will want to pay her out any remaining and available vacation, personal time,   etc. according to your company policy(in accordance to state laws) and then she would also be eligible for rehire(if you want) after she gets herself in order.

I hope this helps.

Brian Phillips

Consultanthttp://www.harvis.org

---------- FOLLOW-UP ----------

OK.  Same employee again. she is off work..again.  We wanted to give her another chance.  I know...Anyway, we don't have a doctor's note or official diagnosis yet; never really received an "official diagnosis" the first time around either.  Haven't heard anything since yesterday when mother called to let us know that we may get a doctor's note today but haven't seen it yet.  Supposed to have doc appt. tomorrow; mother has requested medical leave for her.  She was off 3 weeks the first time around.  Again, we don't know what is wrong with her "officially".  We don't want to keep her job open for her while she is out but want to be legal about the whole thing.  Do I try and contact her or could I fall back on the no call, no show after 2 days that is in our policy?  Any advice again?  I know I'm sorry.

[unss94]

Joni,

I am a big believer that rules are for the exceptions, not the norm.  Sounds like this employee is an exception.   Also,  no need to apologize.

Since it seems you already have a WRITTEN policy for terminating employees who "no show/ no call"  after two days without an official doctor note or for simply not contacting the office.  Good...     Also remember,  a doctor note isn't a golden ticket to miss half the work year without any repercussions.    Even with a note from a doctor,  the missing time can be too much of a burden for the workplace and the employee can be let go due to "missing too much time".  Of course, this goes hand in hand with a stack of warning notices for missing the time too.    Fair is fair and you as the employer are obligated to issue a warning to an employee who breaks the rules.   This way, there is no excuse for anyone to say,  "I didn't know I was doing something wrong... nobody told me..."   Okay,  that's BS,  but true nonetheless.

Be careful in tracking down the employee to get answers.  You may learn more than you really want, then once you "find out",  you will be on notice to accommodate or otherwise help the person keep the job.  Not that there is anything wrong with accommodations,  but you know where I'm coming from.    Clearly,  the employee is not holding up her end of the deal-  she is missing way too much time.   She is not calling off,  she is not providing doctor notes,  her mother is acting as her spokesperson.     If she cooperated with the employer by keeping them apprised of her situation, the employer could be proactive to help the employee get through it.  Again,  the employee is not offering help to aid the employer, so the benefit of a doubt is not there.  

Here is what I would do based on the limited information I'm aware of....

Easiest- but unlikely approach

1-  I hope you were keeping very good notes on this issue- document everything, time, dates, who said what and what verbal or written warnings were given.

2-  don't call the mother or daughter anymore.   Allow her to simply fade away and "not show up or call off" for another two or three days.

3-  if you hear nothing by Monday morning  3/15,  and she is still not there, then 2 minutes after you get into the office on Monday morning IMMEDIATELY call the employee at home and tell her- or her mother, that she is no longer employed due to no show no call.  period.    Thank the mother for being a spokesperson for the girl and that you hope everything works out for her.

Leave a voicemail if needed.

Possibly this will happen though

1-  The mother will call you again Thursday or Friday and give another story for not having a doctors note yet.  Or,   "...it's coming, I'll drop it off for you today"   Maybe she shows up, maybe not...   At this point, the mom is aiding and abetting and for this I feel sorry for the Mom,  I'm sure her intentions are good.   Unfortunately, the mom is not the employee.

2-  If  at any time you do speak with the mother or the employee,  remind them ,  no,  GIVE A FINAL WARNING -   no show no call policy and the policy you have regarding a doctor note for unexcused absences(if you have such a policy).     Tell her,  be here, in person, or on paper in a Doctor's note.  Failure is reason for dismissal.   Give a day or two for the deadline, never the next day...   Sometimes, just one day is not enough time in the eyes of the law.

3-  remind the employee they need to provide you with a doctor note for the last time they were out for three weeks-  and also for this most recent period.  No note means you will terminate.

So, at some point, it may be best not to be so concerned with whether the employee will be eligible for collecting UC or not.  In the long run, collecting UC is not as important as the negative effect her absence has on the whole office. Another approach you can take is to warn her in writing that she is missing too much time and if it continues, then you will need to let her go.

So, again,  you see that this kind of issue could have been resolved earlier by:

1- having the right policy in place

2- enforcing the policy

3- documenting offenses -  again, typically the exception employees

4- make exceptions if and when appropriate

5- issue warnings and discipline using a progressive discipline program

6- know the difference between an employee who is hurting and trying to comply with policy, but is unable to -  versus the employee who has her mom call ,  never provides a doctor note, never calls herself off, etc...

If the employee comes through and says,  I have  XYZ  and I need help doing my job,  then you need to see about accommodating her position duties, but only to the extent required by law.  This is the Americans with Disabilities Act  (ADA).    Most likely,  this will not be an issue.

Final thought...  maybe she's interviewing elsewhere and taking days off ?   Oh, I could tell you some real stories....

Brian Phillips

HR Consultanthttp://www.harvis.org