Question from a business owner with a chronically ill employee:
We’re in a difficult situation with an employee. She was suspected of substance issues because of some erratic behavior, but then she recently told us that she has been diagnosed with MS. By itself, MS can explain some of the behavior and even forgetfulness, etc. However, we’re almost certain that she is very heavily medicated while she’s at work – and while she is “functioning” and seems to be communicating fairly well, we just don’t know where we can and should draw the line.
We have already had 1 “corrective action” sit down with her because we were concerned about her lack of focus at times. One day she was perfectly fine, the next day she couldn’t stay in her seat because she was hyper and chatty and occupying everyone’s time with conversation, then the next day she would hardly say a word and was obviously not in a good mood. It’s just a daily roulette wheel wondering what her temperament will be.
Without making it personal, we told her that we noticed and told her we care about her and that if she needed a personal day here and there, she could take one. We also told her that when she was at work our expectation was that she be focused, and productive, and professional.
Even though she’s able to get some work done, it makes us uncomfortable having her around the office in that condition, and we know our other employees notice something is not right. We also acknowledge she has legitimate health challenges that may contribute to the moodiness and erratic behavior with or without the meds on top of it. What are the discrimination risks in terms of taking corrective action…especially if she can claim some type of medical or disability discrimination because of the MS diagnosis? Our goal is not to get rid of her. When she’s in a normal state of mind, she’s a great employee and frankly it would be a big loss to our company.
We certainly sympathize with her health challenges and want to support her personally, but where can we draw the line as it relates to regulating what meds, or how much, she can take when she is working? We want to make sure there weren’t any serious pitfalls from a legal standpoint.
Our response about the employer’s legal obligation:
That situation can definitely be tricky from both a liability standpoint as well as an employee morale standpoint. If you are still under less than 15 total employees on payroll, then technically you are not legally obligated to accommodate her based on any medical conditions because you aren’t under the Americans with Disability Act. The ADA applies to companies with 15 or more employees, so your legal exposure is limited because you aren’t required to follow the ADA, however, I see that it is in your handbook (which is good business practice) so we should be mindful of it as a policy.
It is important to keep the focus on her work, her performance while at work and her impact on the workplace and co-workers. As her employer, you can’t regulate her medical condition and/or ensure that she takes the appropriate level of medications. What you can do is talk to her about her performance issues, her value to the company and then ask her what you can do as an employer to help support her in her role.
It sounds like you handled the corrective action appropriately. We would recommend staying the course with her as it relates to her performance and impact on others and it may be that she goes through the full disciplinary process. If she is clearly having trouble on any given day, it may be worth sending her home or even setting her up to be able to work from home to lessen the impact on the other employees, if that is a reasonable and viable option for the business.
She may be valuable, but sometimes allowing undesirable behaviors because an employee is a producer can have a bigger impact on the other employees and their morale. They may perceive that there aren’t consequences for undesirable behavior and lose respect of the organization.
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