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I'm on the board of an organization that has recently hired a new employee in a position where attendance during particular set hours is fairly important.

The employee used up all her paid time off during the first 2 months of the year due to illness. We revised our PTO policies to allow her to earn comp time during other hours under certain conditions (such as, we have a need for someone to help with an event outside of her normal hours) rather than always having to take unpaid leave, but we really need someone in the office during her set hours, and we don't have anyone else on staff who can fill in.

Assuming that the illnesses are genuine, is there a good/respectful way to handle this? (The person's direct supervisor just sent her an email while she was again out sick, stating that her "excessive" absences are "unacceptable" which I don't consider a good or respectful way of handling the situation.) As much as I'd like us to be considerate of the employee, whose absences are beyond her control, it is true that her absences create a hardship for her supervisor and for the organization as a whole.

(I am in the U.S. and I tagged "disability" although I don't know whether or not the employee has a documented chronic medical condition or whether she has just been unlucky with her health this year.)

This is a small non-profit organization. It does not have an HR department. It has a board of directors, which are all volunteer positions. And it has 4 paid staff members, two full-time including this one, and 2 very part-time. There is no other role this employee could fill, nor anyone else who can fill her duties (other that possibly other volunteers, but that is unlikely as most are not available during the workday either).

For what it's worth, we really don't want to have to terminate the employee. If it's a temporary situation (unlucky with health the past several months) we'd want to just ride it out. If it's likely to be a chronic situation, we may have no choice. And of course we can't exactly ask directly.

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Please add your state. This varies from one state to the next, and "USA" isn't specific enough for this kind of thing. In some states you can just fire this person for no reason at all. You have a reason, but you don't state it, and you don't need to, by state law. But, that only applies in certain states. –  Jasmine Jun 27 at 23:31
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@Jasmine I'm in Vermont as suggested by my userid –  PurpleVermont Jun 27 at 23:34
    
Take the REASON for the absences out of the equation. They are not relevant, not really. Ensure that the job description is accurate, i.e. required to be physically present during x-x hours. If she cannot meet those requirements, then aren't you within your right to terminate? –  CGCampbell Jun 29 at 14:50
    
@CGCampbell within our rights, yes, most likely. But we really don't want to. –  PurpleVermont Jun 29 at 14:55
    
It would be incorrect to assume you live and work in Vermont simply because of the username. I know somebody who uses "PackersFan" for his ID and he lives in Colorado. We just can't be expected to go by that. And yeah, Vermont's a little weird - you better get a lawyer. –  Jasmine Jun 30 at 16:20
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4 Answers 4

Consult an attorney who specializes in employment - this is something you do not want to get wrong. The size of your organization may affect which laws are applicable, and whether or not this is a disability also affects the proper way to proceed. Your state may also have laws that apply.

This person is a third of your workforce, so you are probably looking at moving toward a separation, and you will want to do this legally, ethically, and kindly, and in a way that protects your organization.

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Yes, I am hoping this won't be necessary, but it does seem that that is where we are headed. :( –  PurpleVermont Jun 27 at 18:36
    
Based on the new information provided about the question (very small company, no other roles, no legal or HR department) this may be your best course of action. Bigger companies can try the other routes. Super-small companies have fewer options. –  Leigh Jun 27 at 18:36
    
We may be able to keep her on in a very part-time role (doing some work on our website) but I suspect that she needs full-time employment (single parent). –  PurpleVermont Jun 27 at 18:38
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If you offer her the compromise of reduced hours, she may separate on her own rather than you having to outright let her go. You may get hit for unemployment, but as she is a new employee, that should not be a significant burden. An experienced attorney can alert you to the different ways this could play out in your state. –  MJ6 Jun 27 at 18:49
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Just to re-iterate MJ6's answer, in light of the latest info: DEFINITELY talk with an attorney to find out your company's/board's options. Stress to the attorney that your ideal goal is to find out that this is temporary/bad luck, and that the employee would stay on; but that you want to know how that discussion can legally be handled. "Legal action/legal consultation" does -=not=- have to be shorthand for "we're going to roast someone over the coals" but rather the way to learn how to do something correctly for the best possible outcome for all concerned, same as learning anything else. –  Leigh Jun 29 at 2:39
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Tricky.

Since this is in the US you have to tread exceedingly careful since this is all tightly governed by HIPAA http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/ . I strongly recommend involving your HR department AND legal help that specializes in employment law and knows HIPAA inside out.

Disclaimer: following anything I say here can expose you to legal risks. Don't take my words for it :-)

Anyway: you have an employee with a medical issue and that interferes with hes/her work duties. You can absolutely NOT inquire about the nature of the medical issues. However, you can inquire about what accommodations the employee need to be able to work. That is in general a legal question to ask. You are legally required to provide reasonable accommodations, but you can't do this unless there is some agreement of what these accommodations are.

Now it's possible that the employee doesn't really know what accommodations are required. In this case you can suggest bringing medical experts to assess this.

Once you have agreed upon accommodations you can assess these against the job requirements. If the accommodations are "need to be able to take one day off per week with no advanced notice" and the job requirements "needs to be in the corporate lobby during all work hours" than you have a mismatch. The mismatch than can be resolved by changing the job requirements, nature of the job, being creative, reassignment or potentially job termination is all fails.

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I edited the question to clarify that this is too small an organization to have an HR department. We did already try to provide her with more flexible paid-time-off arrangements. I'd be willing to help suggest a reasonable accommodation that would help her to be able to keep her job, but honestly I don't know how you can accommodate "unable to be present" in a job that requires physical presence to do things like answer the door. –  PurpleVermont Jun 27 at 18:27
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Is there absolutely no way that she can work from home part of the time? Is there another role in your organization that would be able to handle someone who works from home or works more flexible hours?

First, ask the employee what's going on. See if this is a chronic condition, or if she is indeed just having a Very Bad Year.

Next, see if you can find ways to let this person have a more flexible schedule, either for a short trial period or for a long term, depending on whether or not the condition is chronic:

  1. check with HR to see if you already have policies in place that will address this issue of not being able to work onsite as frequently (possibly telecommute 30% in a given month, or two days a week, whichever comes first)
  2. find ways to change her job so that she's needed in person/on-site, less often, but so that she'll still provide concrete value to the organization
  3. look for other internal roles that will let the employee continue working for the company/providing value, but will allow for more flexible working situations

That, for a start. Telecommuting won't work for every position, and it can introduce other needs that your organization will have to address (VPNs, policies on remote work, logging, maximum telecommute time, who can and cannot telecommute, et cetera) so if your company still has a role that will allow her to telecommute and doesn't yet have a telecommuting policy, your HR may want to consider this a test case for creating and implementing those various policies.

EDIT: @Hilmar brings up the very good point that asking an employee to provide the specifics of an illness may get your company into legal hot water - so it's best to approach this carefully. Figure out what you can and cannot ask, under which circumstances, and when approaching the employee, let them know that you want to find something that's going to work equally well for both parties, if at all possible. I didn't consider that aspect, but...yeah, if there are interview-questions that are verboten, then surely a conversation like this would have some potential "can't-legally-ask" areas too.

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Yes - talk to the employee. –  KatieK Jun 27 at 17:33
    
Part of the duties involve answering the phone and answering the door, and handling visitors, so yes, it really needs to be done in the office during office hours. –  PurpleVermont Jun 27 at 18:20
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Yep, that makes things very tricky, then, for your specific situation. (Wow. Whole 'nother answer, then.) –  Leigh Jun 27 at 18:34
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Can she be redeployed to some other position?

Keeping her in her present position is cruel to her and a hardship to your organization.

Either hire someone to carry out her duties, or assign one of the existing employees to her position. If it can at all done, have a healthy employee who can do the job and her swap positions, even if the swapping will result in reduced compensation for her.

My logic is, better take a pay cut than a job loss.

Note: your edit of your post pretty much makes my answer inapplicable in this instance - However, for whatever it's worth,my answer may be applicable to an employer with more resources and more employees than your board.

I wonder if she knows of some volunteer or part-timers who can fill in for her on short notice. The other thing I can think of is, how close are you to a university? May be you can have a pool of students that you can call to fill in for her. Or you could advertise in your state's Department of Labor's bulletin boards for a pool of people who can step in for her. I acknowledge that spending a couple of hours to line someone up from one of the pools for her every time she gets sick - that's not a great productivity idea. If your state's health services safety net is pretty good, you might have to consider biting the bullet and letting her go.

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see my edit to the question above -- this organization is too small to have other roles she could fill –  PurpleVermont Jun 27 at 18:23
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