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When Poorly Performing Employees Suddenly Get Sick

You finally sit down with an employee who has performed poorly for months, and you give him or her both a detailed performance improvement plan spelling out your expectations and a time frame by which they must demonstrate substantial improvement. The very next morning, the previously healthy employee calls in sick and soon thereafter requests medical leave, supported by a doctor’s excuse, to obtain treatment for work-induced stress and depression.

If you were to poll a room of experienced human resources managers and ask them if they have faced this kind of situation before, I suspect that most would raise their hands. Employees really do suffer stress-related breakdowns after being confronted with a final warning, but an employer may be justifiably suspicious of a leave request that an employee makes immediately after a warning is given.

Even if an employer suspects fraud, it is usually best to treat the suspiciously timed leave request no differently than any other request for leave. The employer should follow its FMLA procedure, provide the proper notices and request the customary documentation. It should not jump the gun and terminate the employee, unless it either has indisputable evidence of fraud or the employee refuses to comply with its requests for information.

The employee may eventually return to work either because he or she has exhausted their leave or is no longer getting paid. Once the employee does return — assuming the employee is out for more than a few days — meet with the employee again, remind them of your expectations and let them know that the time clock for them to address their performance issues has restarted. In the event that the employee requests “reasonable accommodations” on account of their newly acquired “condition,” you should engage the employee in an interactive process to see how you might help them meet your expectations.

Remember, however, that employees don’t have a right to dictate what might be a reasonable accommodation for them to be able to do their job. “I want to be reassigned to a new supervisor because supervisor X causes me stress,” should be a non-starter. On the other hand, agreeing to modify the way instructions will be provided (e.g., receiving them by e-mail instead of verbally) or providing minor modifications to work hours or the work environment may be reasonable accommodations to help the employee succeed. Ultimately, the employee needs to understand that he or she does not have “carte blanche” to do whatever they want. They are still on thin ice and could be terminated if they don’t perform.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.