By Steven T. Collis

    Oklahoma employment lawYou’re all set to discipline an underperforming employee. You sit down for the disciplinary meeting, but just as you start discussing the employee’s performance problems, she reveals she has back and neck pain because of work-related stress. What do you do? This article provides some practical steps you can take to handle this all-too-common workplace scenario.

    Setting the stage

    Let’s look at the facts from a recent decision from the U.S. 10th Circuit Court of Appeals (which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming). Susan Bennett worked as a fiber optic technician for Paetec Communications, Inc., for 12 years. She was responsible for locating, repairing, testing, and maintaining fiber optic cables in parts of Oklahoma and Arkansas.

    After Paetec was acquired by Windstream Communications, Inc., Todd Moore became Bennett’s supervisor. Moore instituted a new policy that required all technicians to check in at an assigned office at 8:00 a.m. every day to pick up vehicles stored on the company’s secure premises and to allow for cross-training.

    Bennett was required to report to the Tulsa, Oklahoma, office each morning, which meant she had to commute nearly 4 hours each day. She often arrived at the office more than 2 hours late and left the office several hours early to commute home. On a number of occasions, she failed to report to the office at all. Her attendance issues resulted in her being unable to participate in a cross-training program other technicians completed.

    About a month after Moore instituted the check-in policy, he and Windstream’s HR specialist gave Bennett a “final coaching” session, the first step in the company’s progressive discipline policy. The same day, Bennett called to report that she was experiencing chest and shoulder pain because of work-related stress and had a doctor’s appointment the next day. The company directed her to file a workers’ compensation claim.

    After Bennett failed to return from a leave of absence, the company determined that she abandoned her job. She sued for gender and age discrimination, but her claims were dismissed before trial. Bennett v. Windstream Comm., Inc. (10th Cir., July 9, 2015).

    Practical steps to avoid liability

    Disciplinary meetings do not always go as planned. As in Bennett’s case, employees sometimes disclose new information that raises legal concerns. When faced with an employee’s previously undisclosed medical condition, a new complaint of harassment, or another issue, consider taking these steps to help reduce the risk of liability.

    Step #1: Weigh the severity of the employee’s misconduct against the risk of liability. If an employee has engaged in severe misconduct such as workplace violence, it may still be in your best interest to go forward with the planned discipline or termination.

    As long as you treat the employee the same as other employees who have engaged in the same sort of severe misconduct, the risk of liability for a discrimination or failure-to-accommodate claim is likely low. Make sure that the facts support your discipline or termination decision and that you have properly documented the events before taking action against the employee.

    For less severe infractions such as attendance issues or failing to meet performance goals, going forward with the termination or discipline may be risky in light of the new issues raised by the employee. You likely will need more information about the employee’s medical condition or newly filed complaint before you can make an informed decision about your next step.

    In addition, you must know whether the employee’s supervisor (or anyone else in the decision-making process) had previous knowledge of the employee’s medical condition or complaint. If so, the best practice is to inform the employee of her performance problems or misconduct at the meeting and explain the consequences of her conduct but postpone imposing discipline until you have had an opportunity to confirm the new information. If appropriate, place the employee on paid administrative leave while you investigate the issue.

    Step #2: Have written policies, and follow them. Good policies will provide you a road map for handling most employee issues. For example, if an employee asserts that she has been sexually harassed by her supervisor, follow your harassment policy, and initiate an investigation to determine whether harassment is occurring at your company.

    If so, take appropriate steps to stop it. If an employee reveals a medical issue, determine whether it qualifies as a serious health condition under the Family and Medical Leave Act (FMLA). Then, follow your FMLA policy, and provide necessary notices and forms. As in Bennett’s case, if an employee asserts her medical condition is work-related, handle it as a workers’ comp claim, and follow your workers’ comp procedures.

    Step #3: Provide leave and benefits to which the employee is legally entitled. Once an employee informs you of a medical condition, disability, or other concern, your best bet is to provide her with the leave, reasonable accommodations, or other benefits to which she is entitled.

    Although it is frustrating that the employee waited until a disciplinary meeting to inform you of her medical condition, you now have knowledge of that information, and you can’t put the genie back in the bottle. Sure, you can try to defend against potential claims by proving that you didn’t have knowledge of the employee’s condition when the discipline or termination decision was made, but that sort of defense is fact-specific and will be difficult to establish early in litigation. To avoid potential liability, offer the employee the leave and benefits to which she is entitled.

    Step #4: Be patient. It’s tough to back off planned discipline and “be nice” to a poorly performing employee while she is on leave or is getting medical treatment. It’s especially difficult when you suspect the employee is manipulating the law to avoid getting fired or being placed on a performance improvement plan. But be patient.

    Let the employee’s workers’ comp claim or FMLA leave run its course. At that point, the employee must come back to work and meet your standards. If the employee’s condition does not allow her to return to work, consider whether the employee has a disability that is covered by the Americans with Disabilities Act (ADA).

    If so, engage in an interactive process to determine whether a reasonable accommodation would permit her to perform the essential functions of her job. Reasonable accommodations may include providing additional time off for the employee to complete medical treatment or recover, but you are not required to provide an indefinite period of leave. If you are patient and provide all required benefits until they are exhausted, you will often be given clear low-risk options for resolving the situation.

    Step #5: With proper documentation, proceed with discipline or termination. An employee who engages in misconduct or performs poorly does not become “untouchable” simply by having a medical condition or asserting a harassment complaint. You may still hold the employee to your performance and conduct standards.

    First, make sure you have communicated your standards to the employee through a handbook, training, and performance reviews. Second, ensure that the employee’s infractions or performance issues are properly documented in an objective fact-based manner.

    Third, treat the employee the same as other employees who have engaged in similar misconduct or have had similar performance issues. Meeting those criteria will minimize the risk that the discipline or termination will result in liability.

    Bottom line

    Disciplining or firing an employee is rarely risk-free. Taking such action after an employee reveals a medical condition or disability or points to another concern raises the stakes even more.

    However, you can minimize the risk of a lawsuit if you stay calm, follow your policies, and provide the employee the benefits to which she is entitled. Take each new development step-by-step to reduce the chance that you will need to defend your decisions in court.

    Steven T. Collis, an editor of Colorado Employment Law Letter, can be reached at stcollis@hollandhart.com.