Hair on Fire – Employees in Treatment

cocktail

Dear Kelly,

I really need help with this one. My employee of one year has been erratic lately, showing up more than two hours late for his shift on two occasions, forgetting to perform some very important safety protocols during his work, and lashing out at a coworker in violation of our employee conduct policy. I coached him on these occasions verbally and in writing, but things haven’t improved. At the most recent meeting three days ago, I let him know that if he arrived late or violated policy one more time, he would be subject to termination.

Today, he showed up an hour late, without a phone call or any communication. When he arrived, I handed him a termination letter, and told him that he was fired. His response was that he was an alcoholic and was attending outpatient therapy, but was having a hard time sticking to his program. I told him I was sorry to hear that but that he was still terminated.

I walked him out of the building and he left. My manager thinks I did the right thing. Now I’m worried that maybe it was the wrong choice.

What do you think?

Manny

Dear Manny,

Yikes! This is one of those sticky situations that doesn’t come up every day. I understand your concern, and I hope that part of your worry is about making sure this employee is okay. We all find ourselves sick and unable to work at one time or another, and hopefully your company is supportive of people who need help, by providing care through your employee assistance plan, health insurance benefits and short term disability salary continuation if those things are available.

That said, the repeated problems you described are serious, and you had no way of knowing your employee needed help for a medical condition, because he didn’t ask for it or disclose his struggles. He just kept messing up at work and not telling you about what was going on. But you can probably understand why he wasn’t too eager to disclose that he was in treatment for alcoholism.

Before we start talking about the situation, I will recommend that you consult your company’s attorney or another employment lawyer to obtain advice about what to do in this situation. Legal advice is critical in hazy situations like this one. So do yourself a favor and be sure to involve your HR manager as well as your legal counsel on the front end before completing a termination in a situation like this.

While it’s true that your employee should be held accountable for his failure to arrive at work on time, performing his essential job duties and adhering to your employee code of conduct, and his explanation doesn’t erase the prior behavior for which he is subject to discipline, this situation merits further analysis. When your employee told you that he was an alcoholic and had been seeking treatment, that statement could be interpreted as a request for leave as a reasonable accommodation for a disability.

A “qualified individual with a disability” entitled to protection under the Americans with Disabilities Act (ADA) is defined by the EEOC as:

A person who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks, and who can perform the “essential functions” of the position with or without reasonable accommodation. An “individual with a disability” is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.

According to the Job Accommodation Network (JAN), this standard of an impairment that substantially limits one or more major life activities has been interpreted to include alcoholism. If your employee was an alcoholic refusing to obtain treatment and repeatedly violated policies and did not perform essential job functions, then a well-documented termination would certainly be an appropriate option. If we consider your employee’s disclosure as a request for leave, then that infuses this termination with a distinct lack of clarity.

Technically it sounds like you terminated this employee prior to his disclosure. But issues of fact may remain here.  The EEOC does not generally view technicalities favorably-their view is likely to be that your employee disclosed his condition at the 11th hour and asked for help, and if you don’t make an effort to engage in the interactive process at that point, you may be held accountable for violating the ADA.

If your employee had gone home after being terminated, then called at some later date to talk about how his medical condition had caused his poor performance and requested help at that point, then it would be much clearer that you had terminated employment based on documented performance problems, without him having requested a reasonable accommodation.

Let’s look at the benefits to your company for allowing your employee to stay on and take leave for treatment:

  • You retain a knowledgeable and experienced resource on your team, instead of losing the investment you’ve made in that employee and incurring turnover costs
  • You promote loyalty and gratitude from that employee, and hopefully a more productive and motivated employee when he recovers and returns to work
  • Your other employees respect and appreciate that you care for your employees when they are vulnerable and sick, and that you will support them through difficult times as well if they need help
  • You reduce legal risk and potential reputational damage that can arise from EEOC action

One caveat: if you routinely drag your feet in dealing with performance issues, and this is an employee that everyone recognizes should have been terminated a long time ago but wasn’t because management didn’t do the job, then you may encounter frustration, both from upper management and coworkers. But don’t give in to the pressure to terminate an employee abruptly in a situation like this when in truth you haven’t been on top of performance management and discipline in the past. If you find yourself in that situation, it is probably worth the additional time and work to give the employee the opportunity to get well and perform his job duties, and manage him appropriately going forward.

You also mentioned that this employee failed to adhere to an important safety protocol at work. If an employee is in a work situation where being under the influence of alcohol presents a safety risk to himself and others, you may be within your rights to randomly test for the presence of alcohol after he returns to work from treatment. Certainly, your reasonable suspicion drug and alcohol testing protocols should still be utilized, consistent with what all employees are subject to in your workplace.

Again, consult with your HR team and attorneys to get specific advice about how to proceed.

Good Luck!

Kelly

Visit Solve HR, Inc.

Photo credit: mariobonifacio via Foter.com / CC BY-SA

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My Employee is Trashing Us on Social Media

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Dear Kelly,

My employee in customer service is a decent performer but she definitely brings the drama. She got really mad about a schedule change the other day and let loose on her Facebook page. She’s friends with a lot of people at our office, including me, and now people are “liking” her post and there’s a ton of gossip around it. It’s totally distracting from our work.

The schedule change is unpopular (I don’t like it either) but the company had to do it so they could put together a way to cover expanded hours because our business is growing. My manager and other people are asking what I’m going to do about the Facebook post and I’m not sure what to tell them.

What do you think?

Jesse

Hi Jesse,

Change is the only constant in life. Your employees are reacting in an expected way to a change they don’t like, and it’s your job to help them through that process. You said yourself that you don’t like the change, but you recognize it’s needed for business reasons.

Have you gotten your team together to make sure they are all aware of why the change is necessary? Do they believe that you understand the many difficulties the change might present, like childcare challenges, personal adjustments, and other things that can affect them in significant ways? Do they know that you appreciate their willingness to work through this?

That’s the place to start, with real, transparent communication. You may find that if you are willing to listen, support and understand them, your team will adjust more quickly to these tough changes. None of you has a choice about the schedule changes-that’s true. But ignoring the fact that it’s a tough change isn’t going to solve this problem. It will only lead your employees to think they are not valued, and will hurt the level of trust, engagement and commitment of your team.

As far as the social media postings, tread carefully. Consult with your HR department and your company’s legal counsel. The National Labor Relations Board (NLRB) warns that social media policies “should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.” Scheduling can be characterized as working conditions. So be sure to get advice before deciding whether to address the post, and how to communicate that.

You can coach your employees on finding proactive solutions to problems, and encouraging them to come up with ideas instead of complaining. By rewarding this positive behavior, and ignoring the drama, you may find that it dissipates more quickly. If you focus on the trust, transparency and communication, you may find that the social media issues and gossip won’t be a problem anymore.

Best wishes,

Kelly

Visit Solve HR, Inc.

Photo credit: Jason A. Howie via Foter.com / CC BY

I Tried to Discipline My Employee and She Brought Me a Doctor’s Note

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Hey Kelly-I’m hoping you can help!

I’m a pretty new team leader, and I manage a team of call center employees in a facility of about 150 employees. One of my team members, Nancy, a two-year employee who in the past has been a mostly reliable performer, has logged in to the phones 10-15 minutes late on several occasions lately. When I asked her about it, she made an excuse that her car has been acting up, said she had to call the mechanic when she got to work. The next time, it was a daycare issue with her granddaughter.

I told her that she needed to log in on time, or I would need to begin the progressive discipline process with her, which at our company means if you don’t improve, you could eventually lose your job. The next time she logged in late, I sent her a meeting notice to come see me two days later, when she was scheduled to work again. When she got there, she handed me a doctor’s note written on a prescription pad that said this:

Due to medical reasons, frequent breaks are needed.

Everyone knows that Nancy is diabetic, but I’m not aware that she has problems from that, and the note doesn’t say it. I’m thinking of telling Nancy that since everyone on the schedule needs to be available to take calls, she already has scheduled breaks, and we can’t just give them to her whenever she wants. I’m pretty flexible with all of the team, and I’m better than most team leads at working with them on the scheduling.

And what about the fact that she already told me she was logging in late because of her car, and childcare? I don’t see what that has to do with this doctor’s note. Even though I feel bad for her, to me, it just looks like an excuse for not doing her job.

Can I go ahead and discipline Nancy for logging in late?  And what do I do about the doctor’s note? She is working today and I don’t know what to do if she asks for another unscheduled break.

Help!!

Traci

Dear Traci,

Running a call center is a tough job. I have consulted with many managers who work in this setting, and I know the challenges. You have lots of shifts to cover, and it’s tough when there aren’t enough people to staff the phones. It’s like one of those puzzles with 1,000 pieces. It takes a ton of work to put it together, and if even one piece is missing, the picture doesn’t look quite right. Add to that the stressful work environment and typically low pay, and it’s tough to keep your people engaged and working productively.

Although I’m not a big fan of progressive discipline, because it doesn’t promote trust or generate performance beyond the minimum required for the role, I understand it’s the way your company has chosen to manage its employees. The violations of company policy that have already happened, i.e., logging in to the phones late, don’t disappear because Nancy handed you a doctor’s note. That performance issue could still be addressed, but before you go there, I would encourage you to look deeper.

You said that you feared Nancy was just making excuses, because she had already told you her reasons for logging in late were due to car trouble and daycare woes. But consider her need for privacy, and you may realize that she was reluctant to tell you that her medical condition was why she didn’t log in right away. People have varying levels of comfort with sharing personal information, not to mention that some medical symptoms can be embarrassing in themselves. They also may fear discrimination or losing their jobs.

You mentioned that your work location has about 150 employees, and that Nancy has been working for the company for two years.  It may be that her doctor’s note is notice of her need for intermittent Family and Medical Leave Act (FMLA) leave. You should notify your human resources department of the situation so that Nancy can be advised of her eligibility for FMLA leave, and given the opportunity to apply for that leave. If approved, the FMLA leave designation will tell you, as her manager, how often and for how long Nancy is approved to be away from work due to her own serious health condition. There are also other reasons why FMLA leave can be approved, including caring for a close family member with a serious health condition. For more information about FMLA leave and employer obligations, take a look at the U.S. Department of Labor’s website.

Even if Nancy is not eligible for FMLA leave, or if what she is requesting is something different than time away from work, her doctor’s note also raises some questions that you will need to explore:

  • The note, along with your knowledge that she has diabetes, raises a question whether Nancy may be considered a qualified individual with a disability if this is what her doctor means by “medical reasons.” Diabetes will almost always be considered to impact the major life activity of endocrine function, meeting the definition of disability under the Americans with Disabilities Act (ADA). At the very least, clarification with Nancy’s doctor is needed to figure out more information about the “medical reasons” referenced in the note.
  • Nancy may be requesting a reasonable accommodation, by informing you she needs “breaks as needed.” It’s reasonable for you to clarify what that request might mean. How often is she likely to need breaks? How long should the breaks typically be? Are these requested breaks from the phones, or breaks from work altogether? More information from her doctor will be needed to clarify what impact her medical problems may be having on her ability to perform the essential functions of her job, and how these breaks will help.
  • If you confirm that the medical reasons rise to the level of disability, then engaging Nancy in exploring these questions, through the “interactive process,” is required. Don’t ignore Nancy’s doctor’s note or deny her request for breaks outright, without working with her to understand what she is requesting and how or whether you can help her. If you need help figuring out what an accommodation might look like, consult the Job Accommodation Network (JAN). The JAN website has hundreds of great accommodation ideas that can serve as a starting point for discussion, and their experts can help you one on one, if needed, at no cost.
  • If you find after gathering more information that the doctor is recommending regular breaks for snacks and blood sugar monitoring, you will probably find that this situation has been addressed at the call center before, so it’s worth checking with other managers and your HR department to see what has been done in the past. It’s best to find a good solution that allows employees to care for themselves and remain productive, and then implement it consistently.
  • Doctors often don’t know very much about their patients’ specific job duties, which is why these types of requests can be overly broad. Sometimes it helps to describe what information you need in a letter, and Nancy can either sign a release giving permission for you to contact her doctor, or she can take the letter to her doctor and request that he or she respond.
  • Give Nancy a reasonable deadline for when you need to receive the information, and until you get the clarification you need, it’s best to allow her to take breaks as needed.
  • If Nancy is a non-exempt, hourly employee, then these breaks can be considered unpaid if she is not working and not required to remain at her desk. You may allow her to work additional time at the end of her shifts so she can get in a full day’s work.
  • If something doesn’t go as planned, like you don’t receive the information you need by the deadline date, always err on the side of being flexible and allowing more time. Send an updated request indicating that no information was received and giving a final deadline. Offer to help Nancy obtain the information needed.
  • Document everything you are doing. Engaging in the interactive process is a legal obligation, and keeping copies of all of your written communication in a secure location that will guard your employee’s personal information is key.

For more information on diabetes at work and the Americans with Disabilities Act (ADA), see the EEOC’s question and answer page. The Disability Management Employer’s Coalition (DMEC) is also a very useful resource to help employers handle problems like this one. These are sticky issues, but by trusting and working with your employees, you can be compliant with legal requirements, keep your team members at work, and achieve great business results at the same time. I’ve just scratched the surface, so if you have more questions, be sure to consult with your HR department and attorneys.

Good luck!

Kelly    

Visit Solve HR, Inc.

Look For These 4 HR Compliance Concerns in 2016

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Human resources compliance is one of those irritating things that some organizations think they have to contend with just once in a while. You know, when you hear about a new rule, or a reporting requirement comes up—you check the box and call it good. On the other hand, sometimes you get a letter from a government entity (Department of Labor’s Wage and Hour division or OFCCP, anyone?) and all of a sudden that box-checking starts to look like it wasn’t nearly enough to get you ready to respond within the deadline when the regulator comes knocking.
You can just call your law department (or outside counsel), right?  When you need them, your attorneys are a critical and very helpful resource, but their work comes at a cost, so it’s best to involve them in proactive planning you can use across your entire organization, not just in the heat of the moment when you are reacting to getting a specific audit scheduling letter. If you want to spend a lot of money for work you could have directed more carefully, out of a budget you didn’t allocate on the front end, you may be hard-pressed to justify that expense without any corresponding business success to celebrate.
On the other hand, proactively planning for the moment when you will be asked to justify your business practices and compliance with state and federal regulatory requirements is not only the most affordable way to go, but it’s also the best method for finding the intersection between compliance requirements and business success. Engaging in substantive review and planning for compliance means that YOU are the first one to spot any problems, and address them, before they get out of hand.  It also ensures that whenever questions or complaints come up, you are ready to respond immediately and without your hair on fire!
 In a really active year for regulatory changes, here are a few areas to watch out for:
1.  Federal contractor paid sick leave: This proposed rule, makes certain federal contractors subject to rules about how much sick leave employees are allowed to accumulate (and use). “We already have paid sick leave,” you say.  Well, these rules might be a little different; (see the FAQ here) how and when entitled employees are allowed to use the time is probably not the same as what you currently allow. The final rule is expected by September 30, 2016.
2.  Compensation information added to the EEO-1 form: Employers with more than 100 employees may have to provide information about pay ranges those employees fall into, if this proposed change is approved.  How much will this change what resources you need to complete this annual report on your workforce (and what will it reveal about your company’s pay practices, if anything) is yet to be seen, but now would be a good time to begin planning. If approved, the changes would be effective in the 2017 EEO-1 reporting cycle (you can review the EEOC’s take on this proposed change here).
3.  Changes to the maximum salary allowed for the “white-collar” exemption from overtime status:  This proposed change has received a lot of attention lately, and with good reason. There are several industries, non-profit and retail especially, that will need to make substantial changes in salary levels, staffing numbers, and/or budget for overtime work, in order to comply with the new salary maximum, which is proposed at $50,440 for 2016.  Check out the Department of Labor’s fact sheet.
4.  Affordable Care Act employer penalty provisions, a.k.a. “employer coverage mandate” go into effect for smaller companies in 2016:  Employers with more than 100 full-time or equivalent employees have already been subject to the requirements throughout 2015, but employers with 50-99 full-time or equivalent employees are now subject to penalty for failing to provide minimum coverage that is affordable and provides minimum value in 2016.  The Society for Human Resource Management (SHRM) has more information on penalties for non-compliance here.  All employers with 50 or more full-time or equivalent employees are subject to the reporting requirements.  Luckily, the IRS has delayed reporting deadlines, but not for long. The new deadlines are May 31st for those not filing electronically, and June 30th for those that are.  Psst-if you haven’t even thought of this requirement yet, you already missed the March 31st deadline for providing forms 1095-B and C to individual employees, so you may want to check it out as soon as possible!

Consider these compliance concerns, seek advice from your attorneys, and take the time to operationalize their advice to fit your HR department and your business, to maximize legal compliance AND success!

Find out more about Solve HR, Inc.

5 Tips for Handling Employee Medical Issues

I get a lot of calls from managers telling me that an employee who used to have stellar, or even just acceptable performance, now is having trouble.  She’s told her manager that she’s dealing with diabetes, (or MS, depression, migraines, you name it!) and this is affecting her ability to work.  It’s probably also making her miss work intermittently too, which can negatively affect coworkers and the business.

Photo credit: Lee Royal / Foter / CC BY-NC-ND

Many employees are just as confused as management about why they can’t perform or how medical problems might be affecting their work.  Here are five tips for approaching a sticky problem involving employee medical issues:

  1. Get HR involved.  You are a manager, and your expertise is helping employees do their jobs the best way possible.  You can deliver that message, coach, follow up and hold people accountable, but if there is another issue involved that isn’t appropriate for you to discuss with your employee, you need backup from your company’s absence management or reasonable accommodation experts.  They will talk with the employee to find out what assistance may be needed, and whether it’s reasonable for the company to provide it.  If you don’t have this function in your company, choose an experienced consultant to guide you through this process.
  2. Offer FMLA leave.  If your employee is missing work, even on an intermittent basis, be sure the employee has been offered the opportunity to request FMLA leave and/or state leaves.  Depending on the number of employees at your work location, your company may be responsible for offering the opportunity to apply for FMLA leave.  Leave requests may be handled in-house or by an external vendor.
  3. Don’t ask personal medical questions.  Your employee may feel comfortable sharing every gory detail of medical interventions and illnesses.  This is your employee’s right, but you should never ask questions unless they relate to the employee’s ability to do the work.  For example, it’s okay to ask “What do you need so you can do your job?” but not “Do you have a slipped disk?  We have a whole pallet of 75 lb. boxes that need unloading.”
  4. Be flexible.  If an employee needs a temporary alteration in his job duties, and it’s easy to do that, then make it happen.  Many managers worry that if they allow a temporary accommodation, it will just tempt others to use excuses to avoid work.  Often, simply making sure there’s documentation of the medical need eliminates the issue of copycat requests.  If a doctor’s note is required, then most people who request help will really need it.
  5. Don’t Broadcast.  There’s no need to explain to your other employees what’s going on with the situation.  If others ask, simply respond that you have it handled, and that you guarantee the nosy employee the same privacy as the employee who needs help.  Other employees are not entitled to an explanation, but if their help is needed, show genuine appreciation and reward them for pitching in.

For more information, visit Solve HR, Inc.