Accommodate or Terminate?

February 10, 2015

I get calls every day from sophisticated human resources representatives who secretly confess they are looking for opportunities to terminate, rather than accommodate, employees who have hit the employment law protected characteristic “trifecta.” You know who I am talking about, right? This employee:

  • Barely “meets work expectations”
  • Alleged work-related condition
  • Intermittent FMLA
  • Mentally impaired
  • Pregnant

The Pregnancy Discrimination Act [and new EEOC accommodation guidance] (PDA); the Family Medical Leave Act (FMLA); the Americans with Disabilities Act (ADA); and the Workers’ Compensation (WC) laws all impact an employer’s obligation to effectively manage this employee’s work rights and obligations.  

Meeting obligations and managing rights and responsibilities under the PDA, FMLA, ADA and WC laws is confusing, frustrating and time consuming. This is the most complicated matter that HR professionals face in the workplace. Employers must have clear and defined position descriptions; established protocols for conducting an interactive discussion with the employee; understand the trigger events for each legal obligation; meet all required paperwork obligations; and hold managers and supervisors accountable to hold these employees to performance obligations. Failure to know and/or meet your legal and practical obligations will lead to years of frustrating and expensive litigation.

So, my advice to all sophisticated human resources representatives who call me is that they need to take a deep breath and first determine all the many ways they may be obligated to accommodate before we have an in-depth conversation regarding whether to terminate.

Contributed by Jeffrey J. Fraser, Attorney, Miller Johnson.