September 23, 2014

You Live in a Fishbowl. Terminate Carefully!

fish being scrutinized like someone about to terminate an employee
It’s time to accept it: You live in a fishbowl. All employers live in HR fishbowls, and we are one Facebook photograph away from disaster. This is why you want CEDR working on your behalf whenever you handle tough employee issues, and especially when you find you need to terminate. And if you are already working with us, this is a reminder of why you chose us.

I was not all that stunned to see this recent Huffington Post report of a doctor who fired an employee due to cancer. While it sounds awful, I can understand the many ways in which the doctor involved probably did not understand the ramifications and the problems with this particular termination. Above all, though, this story reminded me of the fishbowl, and how careful all of us, in today’s world of online photos, viral videos, and media super storms, have to be.

Here are the basics: An employee is diagnosed with cancer, and tells her employer. The employer, while sorry to hear the news, was also worried about the employee’s ability to fulfill her job duties, and in any case, did not think she should have to struggle through those duties while battling cancer. He terminates the employee and gives her a letter to make it official. Unfortunately, this letter goes so far as to state that her diagnosis of cancer is the reason for her termination. A horrified friend takes a picture of the letter and shares it online…and the rest is social media history, and a very unfortunate situation for the employer.

Here’s the problem. This doctor’s letter is an example of exactly how not to fire an employee. While he may have been motivated by compassion (and possibly also a simple desire to protect the productivity of the business), the doctor managed to irrevocably associate the following factors with his decision to fire the employee:

  • Discrimination against the employee because of her health needs
  • Discrimination against the employee because of her pending disability
  • Discrimination in advance of her becoming unable to do her job, and presumably in advance of her making requests for reasonable accommodations, or his attempting to provide such accommodations

And, to top it all off, he put all of these mistakes on his letterhead with the date and his signature, thus creating the perfect Facebook tableau.

Now, again, I’m not saying the doctor involved meant to do any of these things. But this is exactly why you need to keep employment law and HR experts like ours on your speed dial. Here’s what employers need to watch out for in a situation like this one.

Disability Leave and LOAs: What not to do

In general, all offices with fewer than 50 employees are able to establish their own policies regarding things like leave due to temporary disabilities or illness. Under some circumstances – if you have  more than 50 employees, for instance – the rules governing leaves of absence, how to apply, what such leave can be used for, and how one becomes eligible, are all dictated by federal law.

But most of you reading this are not subject to FMLA and are therefore able to determine on your own how much and when an employee can apply for and use disability leave. OK, fine. The other key component in maintaining your control in this area – whether you can safely terminate an employee who is, unfortunately, simply not able to perform essential job duties – is to have a job description that outlines the physical requirements of each position.

When this type of situation comes up, using your disability / leave of absence policy and the job description for the position in question, you should then enter into an interactive process with your employee. Here’s what you do NOT do. You DO NOT preempt that process with a letter saying, “I’ve decided that this is going to be too tough on you.” You have to wait for the employee to say it, or for them to become unable to fulfill their job duties as outlined by your job description, and for the conditions of your policies to run their course.

Reasonable accommodations (and avoiding discrimination claims)

The laws say, you may not treat a disabled employee differently than you would if they were not disabled. The way this shows up in action is, you must do your best to accommodate each employee’s needs until or unless it becomes an “undue burden” on the business.

In a case like this one, if the treatment gets rough and your employee can’t do her job, or is having a lot of difficulty performing, you bring it up within the specific context of the requirements of the position. You also do it with compassion and tact. If you are smart, you document your efforts well so that you can show you did your best to make reasonable accommodations. This interactive process might include additional doctor certifications and written correspondence that includes you asking her what she needs.

So what’s reasonable, and what’s an undue burden?

Reasonable accommodation requests often include:

  • Time away – with a cap, and a possible extension. (This extension part is new to the topic of disability leave.)
  • Hiring someone else to help out
  • Extra breaks
  • Reduced hours
  • Change of primary duties for a short period of time
  • Extended time away during the worst times

More points to consider

There are several other possibilities you want to think through ahead of time. First of all, when dealing with this kind of legitimate issue (we get a lot of not-so-legitimate attempts to claim temporary disability) your interactive process with the employee often leads to the employee realizing that they cannot perform. In such cases, they may bow out or ask to be let go and possibly re-hired later. This may solve your problem.

Next, as I mentioned before, the number of employees you have matters. State and federal laws that protect disabled employees kick in at different levels.

Plus, you need to keep in mind that everyone is watching, including your employees – and so you need to balance your business needs with how you handle the situation as a whole. It’s too late to create a plan after your employee is already having problems.

One more aside, and another reason for caution: The doctor who wrote this unfortunate note was hoping that his letting the employee go would free her up to claim unemployment. Problem is, unemployment will often not cover a temporary disability. Social security and private insurance are the main outlets for relief, and don’t become available for months. This country does not offer a great safety net for these types of situations, so families and workers often have to take desperate measures in order to survive.

Someone asked me, “How should I handle this?”

  • Have strong, legally enforceable employee policies in place
  • Maintain up-to-date job descriptions for every position
  • Carefully address issues when they come up, not before or in anticipation
  • Keep your relationship with the employee professional and compassionate
  • Keep looking for solutions, and document what you can and cannot do

Finally, and most importantly, get help whenever you need to terminate an employee. Following your instincts, as they guy in this story did, might not work out so well.

Friendly Disclaimer: This information is general in nature, and is not intended to replace good counsel about a specific issue with either your attorney or your favorite HR Sherpa.

For questions about this or other HR issues, doctors, practice owners, and their office managers are welcome to call CEDR at 866-414-6056, or email info@cedrsolutions.com.

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.

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Please note: CEDR Solutions specializes in providing expert HR support to owners and operators of independently owned medical and dental practices.