What should I do if an employee is frequently ill and absent?

Posted: December 5, 2019

A client has a relatively new employee who has been calling out sick almost since he started working. Each time it is something different (a cold; a headache; a stomach bug), but mainly it is just “I do not feel well.”  This employee, however, has a job that the employee thinks can be done remotely so the message has often been “I don’t feel well – I’m working from home today.”  Or “I don’t feel well – I’ll be in after 11:00.”

This company has no particular telecommuting policy, but has permitted it for others when arrangements are made in advance, and have been allowing this sporadic working from home to go on with this employee—while paying the employee full pay.  In this case, however, although work appears to be getting done while the employee is out, the resultant reports have either been late or faulty and then had to be redone.  This inefficiency has caused problems for others attempting to provide service to customers and was generally inconveniencing the team.

The client wanted to let the employee go but was concerned about legal obligations they might have to their employee.  They were right to be concerned.  This situation raises a number of legal issues.

  • How much time off was he provided by the company, and had he yet used it up? It is illogical to let an employee go who had not used up the amount of time off granted.  In this case, however, the company had not even been keeping track of his time.  Step one?  Figure that out.
  • Was he covered by a local paid sick leave law? In this case yes, he was. The company also needed to ensure he had been provided with all the paid sick leave to which he was entitled.
  • Was he protected by any disability discrimination laws? In this case, we don’t know because there was no indication (other than varying temporary conditions) as to whether there was an underlying medical condition that would qualify as a disability. However, the company was covered by the federal Americans with Disabilities Act, as well as the state and the local Human Rights Laws that prohibited disability discrimination.  Thus further, information was needed rather than presuming that he would not be covered.
  • Did the company need to allow him to telecommute? Probably not, especially because he had evidenced that he was not successfully doing his job remotely. However, permitting an employee to telecommute could be a reasonable accommodation under the disability discrimination laws.  The company was going to need to get more information through the interactive process to determine what it legally was required to do.
  • Was the employee aware of the problems his absence and faulty work product were causing the company? In this case, no. He was not being properly performance managed.  Even disabled employees are required to do their jobs.

There were multiple legal issues that needed to be worked through to determine the company’s rights and its obligations to this employee.

The client was prudent to reach out to us to help sort through the multiple issues raised.  Each situation is unique and must be resolved depending on the facts of the situation.  Your employment counsel can help make sure that the company complies with all of its legal obligations to your employees, while you run and manage the company to deliver your products and services.