I have an employee who was on medical leave for four months. We do not fall under fmla. When she finally returned, she brought a note for sit-down job only for 2 months. Then she stated it might be 6 months when she returns to regular duty per her doctor. But then I know for a fact that she is working at another job doing the same thing but not restricted to sit down only. She never gave that employee a doctor’s note. Can she be fired for this?
Want To Fire Her
Dear Want To Fire Her:
First off, was it a workplace accident? Sounds like it is and she is on restrictive duty. Back off of her. Why are you so eager to fire her? Sounds like she was truly hurt. I would not take any action unless I had proof positive of any discrepancies in her health. In other words, be very careful. Second Opinion: Dan Kearney answered your question about light duty assignments; and he has HR expertise and good insights about such issues. However, I wanted to add a few thoughts that might be helpful.You don’t say the size of the company. You do say you are not under FMLA. If that means you have 15 or less employees, it may be no other laws regarding long-term illnesses would apply either. However, before you do anything, it might be well worth the money to get the short-term assistance of an attorney who specializes in labor law. Otherwise, if your company is large enough to have an HR section or a personnel officer, they should be the ones helping you with any decisions about this matter. You may find your state’s department of labor would also be a good resource. Contact them and ask what laws might fit your situation.In the meantime, here are some issues to consider–apart from the law and more applicable to general management: 1. Try to take your emotions out of this matter. There often is a tremendous temptation to get revenge on people who seem to be purposely making our lives difficult. The result is that we become polarized in our thinking. We start assuming the worst motives on their part, for everything they say and do. If you own the company, that’s one thing; I can understand an increased level of frustration. If not, say to yourself, “This is simply a personnel issue. I will take it one step at a time and deal with it. When it’s over, I will be able to say I showed my professionalism.”Failure to do that often ends up with an undeserving employee looking much better than the apparently vengeful employer or supervisor. Don’t let that happen to you. You don’t have to be overly sympathetic if you can’t sincerely feel that way. But do be courteous and appropriately helpful about all the issues related to this matter. Be as open as possible. Don’t say one thing to the employee’s face and another behind her back.If you talk to the employee about this matter, use phrases like, “Help me understand this.” “I’m not getting a clear view of this.” “It will be very helpful if I can additional information about this.” “There seems to be a discrepancy in your work requirements here and in your other job. Explain that to me.”Those not only will get a better response than an accusatory question, they sound better when they’re quoted later!2. Is your primary concern that she does not have a work restriction at her other job but she does have at her job with your company? If she has lied to you and said she has no other work or that she is restricted on her other job too, that would something to possibly consider as a fireable offense, because it is not related to the physical restrictions; but even then you would want to ensure you were on the right track legally. If she has told you truthfully about her other job, that puts a different light on the subject.As for why the restrictions are different–it may be that the other job has a different work station set-up. Or, there may be something else about it that makes it different than at your workplace. Have you asked the employee about her other work? How do you know she doesn’t have restrictions there? How do you know she didn’t take a doctor’s letter there? This would be a matter to investigate, rather than making assumptions.Has the company corresponded with her doctor? Again, you would want to ensure you are safe ground with this. One thing to remember is that the recommendation of a private physician is not necessarily binding on an employer. Your HR or other legal advisor could review the physicians letter to decide how much weight to give it. Perhaps your company would want to spend the money for another opinion.3. Now, we come to the big question: Can she not do her work adequately while seated? Why is there an objection to her having that restriction? If she can do her work while seated, then you may want to save yourself problems and simply let her do it; and let others do their work while seated as well, if they choose to do so. If she can’t do her work adequately, you should be documenting that fact. Prepare a record of what is not being done that should be, or the dangers of having her do her work that way, or whatever objection you have. You may need that at some time.4. Consider the quality and quantity of work produced by this employee before her accident, as you think about how you want this to be resolved. If she did good work and will one day likely do good work again, maybe you want to try to work with her through this. If not, you may be less inclined to give her the benefit of the doubt, now. You say she has been restricted to sitting while working since 2000. Apparently she is able to do it successfully. Could it be this has become a line drawn in the dirt for both of you?One of the biggest problems in situations like this, is that often an employee was considered a problem before; and when he or she seems to be milking the system, the employer uses that as an excuse to fire him or her. That almost always leads to lawsuits and other negative results. The employer would have been better off waiting for full recovery; THEN firing the employee!5. Be very careful about who you discuss her medical problems with, and what you say about it. If you are focused on firing her, you will find it worthwhile to use an attorney to advise you about what you can ask her current employer, what you can share with others, and what you can do, in general.Situations such as this can be very frustrating, I know. It may be equally frustrating for the employee. Your best approach is to decide your ultimate goal, then find the legal and HR resources to help you make that happen, if it’s possible and ethical.Best wishes. Let us know what results, if you have the time and want to do so.
Dan Kearney & Tina Lewis Rowe