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Unreliable employee who has MS may be fired

http://www.adn.com/business/story/5081595p-5009206c.html

May 17, 2004
Lynne Curry
Anchorage Daily News

Q. One of our employees suffers from multiple sclerosis, a disability we didn't know she had when we hired her. We were too busy to keep an eye on how well she was doing during her probationary period, so she became a regular employee even though she had poor performance.

We were just about to fire her when she told us she had MS, and our personnel officer told us we couldn't discharge her because most of her misperformance was related to MS. Besides, once we knew she had to deal with MS, we wanted to give her a break.

She also started to have emotional issues. When customers or co-workers were nice to her, she made comments like, "You're just being nice because you pity me?" I reprimanded her for several errors and she accused me of trying to "take her job away because I didn't want a cripple around." She became an employee whom co-workers avoided. She also was often home ill.

This morning, I needed something from her. I went by her desk three times in 45 minutes and never found her there. When I finally found her, she explained that she was feeling poorly and had gone across the hall. Because she didn't look well and had obviously been crying, I asked if she wouldn't want to take a day of sick leave. She explained she'd used up all of her paid sick leave and couldn't afford to take unpaid leave.

The other managers and I have agreed that she's not doing her job and hasn't been for a long time. What are my rights as the employer of a low-performing disabled person?

A. You deserve the right to supervise employees who can and will do their jobs. In this case, you partially gave up that right when you didn't promptly handle a problem situation during your new employee's probationary period. Once employees become regular, you need to hold yourself to a higher standard when making termination decisions.

That standard again elevated once she told you she had MS. From that moment on, you took on the obligation of accommodating to your employee's disability, provided she can do her job without causing you, the employer, an undue hardship.

According to Anchorage attorney Tom Van Flein, "if you make every reasonable effort to accommodate your employee and she still can't handle the job, especially if her problems relate to a lack of skills and not MS, you are not obligated to keep her solely because she has MS." Van Flein points to the 1999 case, Mole v. Buckhorn Rubber Products Inc., in which an employee with MS and depression couldn't perform the essential functions of her customer service position, which included correctly entering customer orders and responding to customer complaints. Says Van Flein, "The company prevailed because it documented the employee's order inaccuracies and poor customer relations over an extended period of time."

Given the high costs involved in litigation, however, Van Flein urges you to make all reasonable efforts to help this employee succeed in her job. Because at least part of the problem appears to stem from defensiveness about her illness, you may want to provide her counseling. Other accommodations might include improving the supervision you provide her and altering her work duties and schedule.

While you may also provide her additional unpaid sick leave as an accommodation, her attendance may ultimately become an undue hardship. Van Flein cites two cases in which attendance became a pivotal issue in courts ruling in favor of employers contesting ADA cases. "In Jackson v. Veterans Administration, when a woman disabled by rheumatoid arthritis sued to secure a housekeeper job, the court stated that the hospital did not have to accommodate irregular and unpredictable absences and could refuse the woman a job. Also, when a reservation sales agent sued Delta Air Lines, in an effort to let her work from home to accommodate her multiple chemical sensitivity, the court ruled that regular attendance was an essential function of the job and thus Delta legally terminated the agent."

Finally, many individuals with MS successfully handle demanding jobs. While MS currently has center stage in your thoughts, focus your attention instead on your employee's work, because her work problem may stem more from attitude and skill than from illness.

Lynne Curry is a local management trainer, consultant and syndicated columnist
 

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