Hello Evil HR Lady!
I would like to say I love your website – I just stumbled upon today and I think it’s great.
My question is – how do you fire someone with a medical condition? We have an employee who isn’t very competent and her skills lack significantly yet she has worked for the company for 6+ years. (We’re in the graphic design business – so it only creates more work for the people with skills.) And no one from HR will fire her because she has medical documentation saying she suffers from migraines.
She will miss days – sometimes a whole work week at a time due to her migraines. For example – in 33 working days she missed 16.5 – due to food poisoning and migraines. Isn’t there a way to fire someone because they suck at their job and don’t do much when they are “working.” Any advise would be helpful.
Before I begin I am going to give my standard disclaimers–I am not a lawyer, I am assuming you live in the US in a state that has “at-will” employment.
Now my answer.
You can fire anyone, healthy, sick, black, white, pregnant and suffering from emotional distress. I’ll repeat, you can fire anyone as long as you don’t have some sort of employment contract.
FMLA, if it applies in this situation, has limitations. (Food poisoning, by the way, probably does not qualify.) Yes, the employer has to give you time off if you have a certified FMLA illness. But, that doesn’t mean you can be a poor performer when you are at work.
There is increased risk when you fire someone who is in a protected class or who is subject to FMLA. The person may sue and sometimes the best thing to do is offer severance in return for signing a general release. For the record, you can’t waive your right to FMLA. If the company is required to grant the leave, they must do so.
You have to make clear that the reason for the termination is not sickness, but performance. HR and her managers may not be interested in firing because they are wimps or because it is easier to keep this person on board than it is to deal with the paperwork involved in terminating. There is a maximum of 12 weeks of FMLA per year and if she’s taking 16 days off in 33, she’s going to max out that 12 weeks (60 working days) pretty darn quickly.
You can’t do squat about it, by the way. It’s not your decision to hire or fire. It’s not your decision to assign out work. What you can do, is do your work. And by “your” work, I mean “your” work. Not her work. Document your assignments that involve her. For instance, send an e-mail to everyone on the team that says.
I just wanted to be clear about the Jones account and my responsibilities.
XYZ must be completed before Steve can begin ABC. I’ve attached a complete project plan.
I realize it’s dull, it’s boring and it squashes your creativity. Do it anyway. You’re going to have to pick up her slack anyway, you just want to be clear that it wasn’t your assignment in the first place.
But, the key thing is just letting go. You cannot solve this problem. You cannot make her headaches go away. You cannot get her to be productive when she is in the office. Your managers already know she is a slacker. She grates on your nerves. You just have to take a deep breath and ignore it.
Easier said than done, I realize. But that is what you, as a co-worker, can do. She can be fired. They don’t want to do so. Sorry about that.