December 20, 2013

When Employee Chronic Illness Interferes: Employer Options for Protecting Productivity

employee chronic illness is wearing down this woman

We often get questions such as the following (with minimal edits to protect privacy):

“My office manager has been continually sick, calling out of the office for legit reasons, but she is always sick!! I expect my office managers to be in the office on non-clinical days answering phones, booking the schedules, etc. This has not been getting done because she just can’t do it due to her health, and it has shown in production.. . . I feel as though something needs to change if I am not shown some real effort soon. I have been very reasonable and accommodating with her sick days due to her chronic illnesses. Any thoughts?  An easy suggestion is to move employees to hourly, but I feel as though from a physical standpoint she just can’t give the hours I need.”

Any time an employee is missing days due to illness, you are one step away from her ability to claim disability out of a chronic illness scenario. This next part is important and pretty easy to follow. By setting a standard and communicating where she is not meeting the expectations of the position, you set the ground work to either ask for and get what you need, or to eventually show that she can’t perform to the reasonable expectations of the position.

You want to be careful when it comes to changing a person’s position or lowering their pay as a means to end. Those kinds of steps can be appropriate during the beginning stages of hiring, when getting to know one another, or during transitions where an employee is moving up the ladder. And in either instance it’s a question of whether they can do the job, so you are taking appropriate measures. In other circumstances, such as employee chronic illness, it can be seen as retaliation or what is known as constructive discharge.

Because you inherited a satisfactory, if not high-performing OM, it seems to me that the issue you describe is also an opportunity to ask yourself, “What do I expect of the person in this position?” Understand that simply saying to the employee, “You aren’t as good as you once were,” is not the best position for either of you to be in.

Three key HR components come into play here:

  • Office policy on asking for disability leave
  • Office policy for absenteeism
  • A well-written job description which includes the true requirements of the position beyond the tasks that must be accomplished

From there, you can also document the times and circumstances where you have been not just tolerant, but also generous, and, mostly importantly, “accommodating.”

I would steer clear of having conversations with this employee that include phrases such as, “I’m not sure you are still up for the job” and the like. Instead, opt for discussing what the job requires and how she’s not doing those specific things. It’s not an attack.

Some sample phrasing: “Leaders need to be present. Leaders must lead by example. Over the last 6 months, you may not be aware, but you have taken a total of 31 days off. We are concerned that X, Y, and Z are not being addressed, which is a result of your absences. The impact on the practice has been as follows…”

When you take these types of measures, you are laying groundwork that helps protect you, and which can often end up getting results.

The “chronic illness” raises a bit of a red flag…

In an interesting story this past fall, one employee was constructing a case around chronic health issues. (click HERE: Court holds that anxiety from possibly getting fired is an ADA disability.) So you certainly want to seek specific advice before taking major steps.

Have additional questions about protecting yourself and your business before terminating? Members can call us anytime at 866-414-6056.

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 expert.

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.