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Chronic absences...with a twist in Massachusetts

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  • Chronic absences...with a twist in Massachusetts

    We have a staff member who takes a lot of sick days and we do not have the staff to cover for their absences. Anytime anyone calls out I (as her immediate supervisor) am left scrambling to find someone to cover their shift (then pay the fill-in person overtime). She was healthy during the summer and now she has been out for two weeks with no potential return date. Most of the time we receive a doctor’s note from her personal physician saying that yes, she was sick and should be excused. Generally we have a “three strikes and you’re out policy” and we have given her a verbal and a written warning at this point. When she is here she is a very good employee, works hard, pulls her weight and is skilled at the more challenging portions of the work. Culturally she is fine as well, no gossip, no interpersonal issues, polite and generally a positive person. The only problem we have with her is the frequent absences.

    Here is the sticky part…she has some medical conditions that puts her under the ADA umbrella. After she was hired (2 years ago) she did disclose to the owners that she has multiple chronic medical conditions. The owners tried to terminate her about a year ago (for the same reason of too many absences) before I was hired as the supervisor, and received a letter from a lawyer threatening ADA litigation for their efforts. She has not asked for accommodations, such as working a stagnant schedule of just days or shorter shifts, nor has she asked for a leave of any kind. She just keeps calling out and providing doctor’s notes.

    As for some background about the company we have 40 employees currently. We are a privately owned company in Massachusetts that is open 24/7 and most employees work a rotational schedule involving all three shifts. We offer stagnant schedules but only if they involve overnights and weekends, about 25% of our staff has a stagnant schedule and everyone else knows this is an option.

    To be honest, I am not sure I want her terminated. She is talented, positive, not a drain on company culture and efficient. What is the best course of action? Should we cut our losses and bail? If so, how? Can I legally ask her if she was accommodations such as a stagnant schedule that does not involve the overnights (which are rough on anyone never mind someone with chronic health conditions)? If I can’t legally approach her about accommodations is there a way to ask without “offering”? I would appreciate any advice or insight that anyone has to offer.
    Thank you in advance for your time and input!

  • #2
    FMLA does not apply as you only have 40 employees. ADA does not guarantee leave though leave can be a reasonable accommodation. Even then, she would need to request an accommodation. Unlimited amounts of leave and or unpredictable leave may not be reasonable for a small employer.

    First, assess the situation. How much leave is she really using? Are there others who use similar amounts? Is it the amount of leave she uses or some other factor (such as last minute notice, the timing of her absences, etc.)? What are the business related implications of her being out? If you can put a dollar value on it or some other quantifiable measure, so much the better.

    As a business you need to discuss what is reasonable. Perhaps calling in less than an hour before her shift is just not acceptable as it does not give you time to call around for a sub. Perhaps there is a limit to the number of days you can offer her as the OT costs to cover the position are prohibitive. What can you reasonably afford? If she hasn't asked for a stagnant schedule or shorter shifts, don't assume those are necessary.

    Meet with the employee and lay out the issues with her attendance. Point out the effect on the company when she is not there (trying to find a sub, OT costs, coworker burn out, transition issues when someone else has to take over her tasks, etc.). If she brings up her medical condition(s) as the reason and asks for an accommodation, then you enter into the interactive process to determine what can reasonably be offered (assuming her conditions are indeed ADA qualifying disabilities). You don't have to grant the ones she asks for, just ones that will work and are reasonable to offer. If no overnight work is not practical and is an essential function of her job, then you need not grant it. If it is something you can work around without incurring unreasonable costs or unduly placing a burden on her coworkers, then by all means, grant it.

    You can insist that she give you some range for her absence. Open ended leave is not considered reasonable. Two to three weeks of leave typically is. Right now she may not have an exact return date but should be able to give some idea of how long she will be gone.
    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.


    • #3
      Do you know that the absences are related to her disclosed medical condition? If she is calling in for the flu or a broken body part, then it does not matter about her other conditions.

      I agree with what Elle has stated. I would also like to say you should document each step you take with the employee. If you sit down and speak with her write up notes of the meeting (including date, start and end times) and place them in her file. If she decides to file a lawsuit against the company it will be very helpful. I email the notes to myself as well so that there is a time/date stamp of when the notes were created.

      There is a DOL website I have used in the past when working with accomodations. I have found it helpful during the interaction process with employees.


      • #4
        Wow, welcome back Elle. We missed you around here!


        • #5
          Some more details...

          Thank you for all of your input, I really appreciate all of your insights! To answer some questions she has missed 8 full shifts and has left early twice since September 1. The average for the rest of the staff is one missed shift or less in the same period of time. We have been documenting any conversations that we have had with her as well as keeping any emailed communications that occur. When she is out sick she is not out for her actual condition(s) but for the flu, a cold, pneumonia or other things that are exacerbated by her chronic issues. In all likelihood her chronic conditions are making her more prone to coming down with something in the first place. I know asthma (which is one of her chronic conditions) can definitely complicate any “common” illness, I know this firsthand because I have it myself.
          On a side note is there a reason she would not want to ask for any accommodations? Does her asking for them put her in any legal categories that one would want to avoid? Out of curiosity, do you want to avoid classification as an ADA employee for some other reason?


          • #6
            She may not want to ask for accomodations because she is getting time off as needed. From her point of view why change?

            Elle's advice is still what should be followed.

            You need to avoid playing doctor about her conditions. Just because your asthma causes you problems doesn't mean hers does. My daughter has asthma but it does not make her colds any worse than normal.


            • #7

              Thank you for all of your input. You are right about playing doctor, it was a good reminder. We are currently in discussion with an employment lawyer, the owners, and the employee to see if we can all agree on a schedule that is mutually satisfactory and fair to the rest of the staff. Thanks again!
              Last edited by Newman375; 12-03-2010, 06:40 AM. Reason: spelling


              • #8
                Glad to hear you are working it out. Hopefully everyone will be happy with the final decision.


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