Firing Someone with a Medical Condition

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.

John: XYZ
Sheryl: QRS
Steve: ABC
Heidi: LMN

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.

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23 thoughts on “Firing Someone with a Medical Condition

  1. I have to add that dismissing someone with medically supported attendance issues can be sticky at the best of times, regardless of job performance issues.

    I might suggest that perhaps HR/the Manager is building a documented file of performance-related issues before terminating, so the dismissal is supported by strong performance-related evidence. I honestly see a good year of this kind of documentation happening before a dismissal happens. (more if she’s absent all the time LOL!)

    If the employee does choose to launch a legal action over the dismissal, I can guarantee that they will have mounds of documentation about their medical issues to build their case that they were fired for medical reasons. The employer has to have mounds of documented performance-related issues to support their decision to terminate.

  2. Not legal advice, just an observation about this type of situation. Timing can be everything. If a company tolerates sub-performance from an employee for 6+ years, and the employee has disability/fmla claims, I would want to see a steady stream of performance management documentation or a critical event before termination. These types of festering situations need up front professional legal advice. Isn’t inertia a terrible thing.

  3. Michael is spot on. Could not have said it better myself.

    I’m not sure if the author of the question is a co-worker, manager of the person or what but Just Another HR Lady has a very good point in that HR may very well be documenting as we speak. A lot of times co-workers do not know the whole story. Someone will be fired and they will cry outrage because the person was their friend and appeared to be “a good employee”…but they had no idea that the friend broke policy after policy or what-have-you.

  4. Excellent points, all of you. Document, document, document and co-workers generally have no clue what is going on behind closed doors.

  5. Shouldn’t the answer simply be “there is no difference in the way you fire any employee.”

    It would seem that if you are wondering how to do it, it is because you can’t clearly define the reason for doing it.

  6. Evil nailed it in the first few words – “you can fire ANYONE”…. but the sad fact is that most managers want to abdicate their responsibility for managing performance to HR. Her medical condition is a complication, but not a bar to discharge. The manager HAS to take an active and consistent position on managing performance with a focus on getting her skills and results where they need to be – to actually show her that we want her to be successful. BUT be clear that this effort is a two-way street. If she fails to hold up her end of the job, SHE will end up firing HERSELF.

  7. Frequently the problem is that no one wants to do the hard work of constructively remediating a problem employee. I work in a large medical center with a mix of at-will and civil-service employees. The civil-service employees are protected by a process that requires a written plan, frequent evaluation meetings, and two periodic “unsatisfactory” ratings for termination – and even after that the employee has extensive appeal rights.

    There are three options: (1) create sham documentation, hold the meetings, and hound the employee into doing badly. (2) Do nothing and tolerate the employee till he/she dies or quits. (3) Analyze the problem, create a plan for remediation, and follow it consistently and fairly.

    A few departments will do (1). Lots will do (2). I joined a department in which (2) had been followed for about ten years. I embarked upon (3) with a problem employee and it was defintely a PITA. However, I had in the past been subjected to (1) and was not going to railroad anyone out of there. For six months I quite tediously discussed, documented, reprimanded and coached this employee.

    Just like with kids, sometimes the employee screws up when you’re just not in the mood to write up a reprimand, or it’s a borderline situation where it seems silly. But I did it anyway, got used to the tears, kept a large box of kleenex and plodded through.

    Unexpectedly, the employee finally got her act together after about five months of the six month process. She met the minimum standards and became an average performer instead of a blight on our department.

    Six months after that, a position in my domain that is much more suited to her vast limitations becamse available, she moved to that, everyone is happy, and she is actually reasonably productive.

    Following the proper procedure for dismissal for cause is not very much fun. The only thing worse is not following it.

  8. Teri – What a great success story! Good job sticking to your guns.
    I guess I’m NOT crazy when I tell managers that people can change and moving them out of the organization is not always what happens (or should happen) in the end of the progressive disciplinary process.

  9. I thought Patrick’s comments on Sept 21 were right on… “most managers want to abdicate their responsbility for managing performance to HR.”

    While those of us in HR can provide as much guidance and support to the organization, it’s still up to the Managers/Supervisors to “manage” their staff… specifically as it relates to performance management.

    I have had several instances in which Managers and Supervisors have asked me to terminate poor performing employees that either;

    1. Were never told they were poor performers and therefore given no opportunity to improve

    2. Given minimal feedback, but it was never formalized and/or (more importantly) documented

    I have tried explaining on these, and many other occasions, that this is an ineffective method for improving performance and/or terminating ineffective employees. (Check out my site on Performance Management systems

    As Just Another HR Lady and Michael Moore stated, building a file for an extended period of time and effective timing of the termination should result in a situation where… “You can fire ANYONE”

  10. Apparently, none of you have been severly sick. Grant it, using sickness as a way to not perform is not ok or right. However, a employee has excellent performance skills but is sick does not grant for termination. As an administrative assistance, I have seen managers create documentation which are not correct in order to terminate the individuals. For me, I keep all of my docotor's notes, hospital discharge papers and anything stating the reason of my absence. No matter, I am being approach by management of excessive absence. As a contractor for state, my immediated contacts are very satisfy with my work. All of my work is done properly. So, because I am an ill person who happend to work, I have to be targeted?

    1. Are you sure about management’s reasons? Your job must not involve writing, because I would never be satisfied with the number of typos in your post. By the way, it’s “granted,” not “grant it.”

      1. Well, I have to agree with the first reply. There are a number of typos, but also a number of grammatical errors.
        However, the main point is that a business cannot run with staff who are excessively absent, no matter what the reason. It is not the employers responsibility to determine if the absence is legitimate or not. At somepoint the workload that is placed on others with these absences either places an undue burden on other employees or creates poor service for customers.

  11. Very interesting blog. My former co-worker has had a situation along this line, and I was hoping someone can clarify.

    She was brought into the supervisor's office and asked to fill a position for a person who was just let go. The position would have required her to do much more walking than she is able (she has medical issues with her knees), and is a shift that she is not available for. According to her the supervisor that if she didn't take that position, she would be "voluntarily quitting".

    We live in an At-Will state, but after explaining why she couldn't take the position, how could they have "let her go"?

  12. i was recently fired for blacking out at work, my blood prssure was thru the roof and not a single employee bothered to call recue or an ambulance they just left me alone is it legal for them to fire me? not only that they let me drive myself home in that condition i almost had an accident on my way home i woke up in oncomming traffic could have been seriously injured as well as hurt others that was irresponsible yet i was fired

  13. Please someone help me!!!!
    I was with a company for a little less than a year. Nov 10 was my year anniversary. I was diagnosed Sept 21, with cancer. I was terminated for “medical reasons”. Is this legal??? I know I don’t qualify for fmla but really??? I have on paper that they terminated me 9/27 for medical reasons. Someone help I’ve called several lawyers and they all want an arm and leg just to consult me.

  14. We have someone in our department that got hired as a mail clerk deliverer in our company that 2 week after she was hired tells us shows us her blown up knee and says she had 31 knee operations in her life.. We questioned why she made mistakes sorting the mail and she has had dyslexia since the 3rd grade.. Now shouldn’t the employee be at fault for taking a job that she knows she cannot physically perform? How can an employer protect themselves against these kind of people who con their way into a job.. and then plan on taking the benefits and going out on disability?

    1. Two words, “reasonable accommodations” if she can do the job with reasonable accommodation then there shouldn’t be an issue… But she is not afforded protection if she can’t do the job at all or essential parts of the job. I’d offer to transfer her to a position that fits her medical needs better as an accommodation if her current one can’t be adjusted to help.

  15. My niece has worked a year tomorrow at Tenneco (an automobile parts plant) in Smithville, Tennessee. She works with heavy machinery in a very hot plant for l2 or more hours a day– some weeks every day. She has been highly praised for her work.
    Wednesday she was so hot that she fainted and was rushed to ER. Then she had tests (results not back yet) with a cardiologist. So today she was fired for medical reasons. Well, duh!!

  16. I’m curious about my neighbor’s daughter being let go from her job. She gets dialysis 3-times a week. She even proposed working from home. I am not sure she ever applied for fmla. Is there any legal recourse she can take?

  17. My mother was fired recently for “Sleeping” in class. Though this was not true. She was listening to everything in class and asked questions. She has perfect track record 16+ years without issues. Her new Job was 3100 miles from her last Job she left to be closer to home.

    In the time she started work my father stole her money that was to be used for health coverage. 1 week later she found out he stole 33,000 from her fathers will. To add more to this my father been cheating on my mother for 3 years while creating credit cards in her name.

    She was told health insurance would kick on 30 days from employment ( She trusted this company ) in the middle of November they changed it to 60 days because she started on the wrong day. When this happened all hell broke out because not only did my father take all her money– she was under massive stress. She started to throw up the day this all came into reality. She did the right thing and called in sick! Managers said she was lying and should be fired on the spot. Truth finally came out and they backed off since they found out she was telling the truth.
    Week later I was with my mother trying to get her medication needs before she ends up in the ER. We found a solution at 5:00am ( Spent my collage funds ) later that day she went into class fearing if she called in they would fire her.

    She could not win and they went into attack mode. Assistant manager lied about her sleeping in class! And there was proof she was asking questions and speaking with others in class. To ad injury to insult the assistant manager started to question what medications she was on.

    She left a secure job to be closer to home only for this company to cheat her out of employment. Christmas around the corner and my father won again. What angers me the most is “No compassion” they treated her like trash as did my father. Father who abused my mother distorted her life and managers put the final nail in the coffin.

  18. Flma is a safe guard for disabled workers against ppl like you who have no idea what it’s like to suffer from a medical ailment. You talk as if these ppl are all faking it and purposely missing work well that’s discrimination. Just because some is not physically disabled doesn’t mean they aren’t suffering. High blood pressure can kill you. Doctors don’t just fill out flma forms with documented medical issues it’s against the law. Some day YOU or a family member might be in the same position as your “poor performance workers” I hope you expierience what it’s like. Oh and it does sound like the HR ppl aren’t managing the flma process properly. Managing and communicating throughout the flma process keeps ppl from pushing the boundaries of their eligibility criteria. Poor management breads bad behaviors.

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