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Employee hurt at home Louisiana

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  • Employee hurt at home Louisiana

    We have an employee who hurt her back while at home. She has not been back for 4 weeks, every week she sends a doctors note that excuses her for a week. We are a company of 19 employees and have had to hire a temp to take her place. She has used up all her sick time and vacation time and her subsequent absences are unpaid.

    Management had made the decision to let her go right before this happened because of dismal job performance, they were waiting for the end of the month...its like she read their minds!. Will we be violating the ADA if we do let her go now?
    Last edited by mccrary612; 06-18-2014, 01:32 PM.

  • #2
    No. The ADA does not require that you provide unlimited sick leave, particularly if she has not self-identified as disabled and asked for an accommodation.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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    • #3
      You might be smart to get it done immediately and with no chatter or leaks ..get it done BEFORE she requests anything. You don't want to get a request!

      If your UC rating matters I would try to cite at least two solid reasons for dismissal for cause..generally just poor performance is NOT cause ...repeated failure to follow policy may be, failure to show up at work, probably, But I'd not want just that one.

      Just an old timers view....

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      • #4
        I have had employees denied unemployment when they were fired for attendance reasons when I didn't even contest. No need to make it more difficult than it needs to be. Though I do agree that it's not a good idea to drag it out.
        The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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        • #5
          I'm old enough to remember the days when a rather lame excuse still got many folks UC..so I?me perhaps a bit more cautious to paper it for cause .

          Id get a bit nervous about repeated acceptance of a doctors excuse ...it begins to look like approval by inaction Ive Been there when management was very sloppy about open ended unpaid leave and on advice of counsel the person was called say Sunday evening and instructed to report to duty at 7 am Monday! and upon a no show by 7:10 the termination notice was given Others might suggest just fire for failure to show up for work , absent wo leave in the traditional meaning.

          if it's time to part company..get it done ..I agree no need to make it more difficult???but have your ducks lined up just in case.

          if this person is reading your mind she may be trying to contrive getting fired under an umbrella likely to get her UC for the max time frame.

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          • #6
            This is one of the problems one encounters when waiting to term after there is a good reason known. Once a decision has been made, act. Why keep a poorly performing employee on the books for another month? For one, sometimes unfortunate events do happen and sometimes that not so great employee sees the handwriting on the wall and will "get injured" or "schedule surgery". Not that you can't still act but it gets messier.
            I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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            • #7
              An attorney once told me "In HR whoever makes the first move, has the upper hand."

              Waiting to act, gives the opportunity to have the upper hand and control the situation. I wouldnt wait. Too much could happen to complicate matters.
              I find that the harder I work, the more luck I seem to have.
              Thomas Jefferson

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              • #8
                Thanks for your good advice! Today I got an email saying she is requesting a medical leave of absence without pay for an undetermined amount of time. Is this something we should be concerned about? We planned to send the termination letter today.

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                • #9
                  I would go ahead and send it. Do not buy into the myth that being absent for medical reasons somehow makes one bulletproof. FMLA does not apply and she has not requested an accommodation under the ADA - and even if she had, indefinite sick time is not a reasonable accommodation. It's not a workers comp situation. There's no other law out there that's going to force you to keep her on. Cut her loose.
                  The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

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                  • #10
                    Agree. Just to be on the safe side, I would not reference her medical situation in the letter. No need to go there as it isn't a reason for her termination.
                    I post with the full knowledge and support of my employer, though the opinions rendered are my own and not necessarily representative of their position. In other words, I'm a free agent.

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                    • #11
                      Thanks guys!

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