Q. We hired "Angela" four months ago. We all liked her and still do, but she isn't performing as we'd hope. Unfortunately, we're now past the probationary period and we've just found that she's disabled. We're afraid of a problem if we fire her without a lot of documentation about her problems, which we don't have.
We know it's our fault for not keeping an eye on this situation. We were all working as hard as we could and hadn't gotten together as a management team to compare notes on the problems each of us had seen. When we met to discuss all of our thoughts about Angela, we realized how many mistakes she was making despite a lot of one-on-one time with each of us supervisors.
When I talked with Angela about the problems, she got extremely emotional and told me she had MS. I cut the meeting short and let our accounting manager, who handles personnel issues, know. That's when I learned we couldn't just fire Angela because potentially her work performance problems stemmed from her multiple sclerosis.
Now Angela reacts emotionally to everything and makes even more mistakes. She took offense to kind statements, saying "Being nice because you pity me?" If co-workers mention Angela's errors, she accuses them of trying to take her job away because they don't want a cripple around. Angela's co-workers now avoid her.
Can we fire Angela?
A. As an employer, you deserve the right to supervise an employee who can do her job. In this case, you partially gave up that right when you didn't promptly handle a problem during your new employee's probation. Once employees become regular, you need to observe a higher standard when making termination decisions.
That standard elevated once Angela told you she had MS. From that moment, you took on the obligation of accommodating to her disability, provided Angela can do her job without causing an undue hardship.
According to attorney Tom Van Flein, "if you make every reasonable effort to accommodate Angela and she can't handle the job, especially if her work problems relate to a lack of skills and not MS, you do not need to employ her solely because she has MS."
Van Flein points to the landmark case, Mole vs. 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.
"The company prevailed," said Van Flein, "because it documented the employee's order inaccuracies and poor customer relations over an extended period of time."
Given the high costs of litigation, Van Flein urges you to make all reasonable efforts to help Angela succeed in her job. Because at least part of the problem appears to stem from her defensiveness about her MS, consider finding Angela a job coach who can help her face her problems square on. Other accommodations might include altering her work duties and schedule.
Although providing Angela additional unpaid leave might be a reasonable accommodation, if she can't reliably work enough hours to realistically handle her job, the undue hardship this creates might ultimately be sufficient reason to terminate her.
Van Flein cites two cases in which attendance became a pivotal issue in courts ruling in favor of employers contesting ADA cases.
"In Jackson vs. 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 because Delta wouldn't 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 could legally fire the agent."
Finally, many people with MS handle demanding jobs. While MS currently holds center stage in your thoughts, focus your attention on Angela's work because her work problems may stem more from her skills and job commitment than MS.
Lynne Curry is a local management trainer, consultant and syndicated columnist. Her advice and opinion column appears Mondays. Questions for her column may be faxed to her at 258-2157 or mailed to her c/o Anchorage Daily News, P.O. Box 149001, Anchorage 99514-9001. Her e-mail is lynne@thegrowthcompany.com.
LYNNE CURRY
MANAGEMENT