Who won this case? Fired for contagious illness
December 28, 2009 by Jim GiulianoPosted in: Employment law, In this week's e-newsletter, Latest News & Views, Terminations, Who won?
An employee exceeds his allowable sick leave and gets a last-chance warning about missing any more days. Then he contracts a contagious illness that prevents him from coming in. Now what? Read this dramatized real-life case and see if you can decide who won when the employer fired the worker, who sued for wrongful discharge.
The scene
“I don’t know what else to say, except the obvious,” supervisor Arlene Franco said into the phone. “We’re going to have to let you go for violating your terms of employment here.”
“That can’t be,” Craig countered. “You’ve seen the note from my doctor saying I have strep throat and should stay out of work. Do you want me to come in and spread it to everybody?”
“That’s not the point, Craig,“ she explained. “We have a signed agreement from you that if you take any more time off this year – for any reason – you’re terminated, no ifs, ands or maybes.”
“Sure, I signed that because I’d get fired if I didn’t sign it,” he noted. “So I’m in a no-win situation. I’m gone if I don’t sign, and I’m gone if I sign. That’s not fair.”
“Let’s get the facts straight,” Arlene said. “We drew up that agreement after you’d taken way too many sick days, some without a doctor’s note.”
Not perfect
“OK, I know I haven’t been the perfect employee,” he admitted. “But c’mon, Arlene, it’s for real this time. I’m really sick.”
“I’m not arguing that,” she replied. “I’m just telling you we have a a signed agreement, and you’re violating it.”
Craig was fired and sued for wrongful discharge, noting that he had a contagious illness verified by a doctor. The company said a deal is a deal, and Craig defaulted on the agreement.
Did the company win?
Answer:
Yes, the company won. A judge said the agreement was fair and legal, and that the employee had willingly signed it.
The employee tried to argue the situation presented special circumstances – that a doctor had verified the illness and ordered Craig to stay out of work, meaning the employee had no choice but to take sick leave.
No dice, the judge said. The agreement said termination was for missed time for “any reason.”
Drawing up employment ‘contracts’
As part of an employee’s appraisal or personal-improvement program, some supervisors like to draw up a “contract” that gets the employee to commit to a level of performance or behavior: For example:
“You (the employee) agree to (perform or behave at a stated level). If you fail to (perform or behave at the stated level), the penalty will be _________ .”
Then you get the employee’s signature on the agreement.
Two bases to touch when writing one up:
Make sure the agreement fits your organization’s policies (and what’s been done with other employees), and
Be sure you don’t ask the employee to do something that’s illegal or unethical.
[Based on: Zwygart v. Board of Commissioners of Jefferson County, KS]
Tags: appraisal, performance
January 4th, 2010 at 10:27 am
Has this been appealed? The last bit of advice- “Be sure you don’t ask the employee to do something that’s illegal or unethical.”- seems to be exactly what the company was asking the employee to do, to come in with a known contagious disease. If this isn’t covered by health regulations (illegal), it certainly would be unethical to expose clients and co-workers, unless there were some way to protect everyone through the use of masks or other means.
Now if the employee didn’t follow proper notification procedures (call in) I could see this. Also, it appears from the employee’s own statements that he had abused the system in the past (”it’s for real this time. I’m really sick.”)
January 4th, 2010 at 10:39 am
It is only my opinion, but this decision does not seem reasonable, even though it was determined to be legal. A marginal employee, such as this one appears to be, will generally present the organization with a more valid event at some time. The best case scenario, of course, would be to get the employee to see that he was given mercy and for him to improve his overall attendance and performance.
January 4th, 2010 at 11:24 am
It’s the poor attendance long before he was “really” sick that got him. I’ve done it many times. When a person rides the system and takes days and time off right up to the point–they should never be surprised they lose their job when something happens.
There are too many people available who will come to work, don’t you think, Mike?
January 4th, 2010 at 3:16 pm
Despite the “contract”, since when does a Dr’s note amount to job protected leave (absent FMLA protection)? If the employee used all his sick time prior to “really” needing it this time, then I don’t see anything in this story that entitles him to additional time off. The principle is the same even when there is protection under FMLA… if the employee brings a note from the Dr. that says he/she cannot return within 12 weeks, it doesn’t allow them additional time – you can term them.
January 4th, 2010 at 3:59 pm
I agree with the decision, and with Hunter. Our attendance policy states that nine absences in a year is excessive. There is a progressive discipline policy in place. I can’t count the # of employees who are surprised that they might be terminated at 9 absences. Generally it’s the cumulative absences (not the one (final) occurrence of illness) that gets them. The employees tend to to say “I’ll be fired if I’m sick?” The answer is “No, you’ll be terminated for excessive absences.” It’s not the one occurrence of illness, it’s the eight OTHER absences for appointments, personal business, taking your kid somewhere, a sick day or two. . . it adds up.
January 4th, 2010 at 4:29 pm
I am assuming the man did not qualify for FMLA, because if he did, the company surely could not have termed him, regardless of any agreement either of them had signed. I wish that had been addressed when presenting this case for discussion.
January 4th, 2010 at 4:36 pm
The guy signed an agreement, he violated the agreement and was terminated. Seems straightfoward. It is important to be consistent. When we start making exceptions, we get into trouble.
However, maybe we should consider the rules… are we making it too tough for an employee to take a day off? Would our employees be more productive and content and less likely to call off with little/no notice if we allowed them a day here and there to take care of personal business without grilling them and penalizing them?
If an employee is not pulling his/her weight, then terminate that person, but let’s not torture all our employees for it.
January 4th, 2010 at 4:45 pm
I’m surprised the judge actually decided in favor of the employer. Well done for the judge, and good to hear that businesses are still allowed to act in their own best interest and be supported by the system. That’s so rare these days!
January 4th, 2010 at 4:49 pm
… to clarify my ‘own best interest’ statement. Meaning that if the business can act in their own best interest (basically to preserve their business), it benefits all the other employees as well. The business didn’t get slammed or fined into oblivion because of an unethical employee, and the valuable employees can continue to be employed.
January 4th, 2010 at 5:23 pm
GMG, I’m not surprised at all that the judge ruled in favor of the employer. It seems like the company had well-articulated policy and followed it consistently. It has been my experience that the system works the way it was intended for the most part. Sure, there are always those cases that defy logic and reason, but in my experience, if the employer loses a dispute with an employee or former employee it’s because the policy was vague, it wasn’t applied consistently or some manager/supervisor said or did something inappropriate or failed to maintain the proper supporting documentation.
January 4th, 2010 at 7:11 pm
I wonder if this guy was counseled for excessive absences before the contract was drawn up. He has a point about beig gone whether or not he signed it. Also, with a contagious illness, the employer really wouldn’t want him there infecting others. Ultimately, I think he did bring this on himself and unfortunately learned a harsh lesson.
January 5th, 2010 at 1:13 am
SS – I’m glad you have so much trust in the system. I’m too jaded I think after seeing how Calif’s Unemployment Dept (EDD) sides with the employee in 99.9% of cases. Not to mention we’re saddled with the 9th Circus Court out here. Glad to see some sanity out there still!
January 5th, 2010 at 8:48 am
GMG, I guess I’m an idealist. All we can do is work for positive change…
January 5th, 2010 at 10:17 am
I think this is a terrible outcome! What is the employee had H1N1 ! While I can appreciate he had excessive absences, what kind of message does this send to employees or applicants. This is not the type of company I would ever work for.
January 5th, 2010 at 10:48 am
The business where my daughter works had the same situation occur. An employee who had used up all his allowed PTO came in with a note from his doctor excusing him from work because he had the H1N1 virus. The supervisor told him he had to work or would be terminated for excessive absenses. He came to work and exposed all his co-workers to the virus. What type of protection does that offer his co-workers? Could they then sue the employer for forcing them to work in an unsafe environment?
January 5th, 2010 at 10:50 am
This is an example where HR has lost their marbles!
January 5th, 2010 at 3:07 pm
Sat in on a termination when someone took a sick day to attend a funeral. “You mean you’re terminating me for going to my cousin’s funeral?” No — we’re terminating you because of the 9 days of prior absences you had plus this one!! Everyone thinks HR is “mean” — we don’t fire people — they fire themselves by their BEHAVIOR!
January 5th, 2010 at 3:23 pm
Linda,
The timing for that terminaton is terrible! Couldn’t you have waited until the next time and do it then! What happens is that this type of draconian managment philosophy sends the wrong message to good people.
January 6th, 2010 at 4:10 pm
While it is too bad the employee was fired when he had a legitimate illness, HR is tasked with upholding policy and previous warnings. If the company had made the exception this time and then fired him the next time, the employee could have claimed wrongful termination – and probably have won – because the company had failed to follow their own policies and previous warnings.
January 6th, 2010 at 4:31 pm
JMF… exactly right. You have to set the rules and stick by them CONSISTENTLY. Take care to ensure the rules you set are reasonable ones that you can live with long-term.
January 7th, 2010 at 1:36 pm
The company followed the law, and was able to fire an unproductive employee due to excessive absenteeism.
Strep throat is generally not considered communicable enough for a doctor to require someone to stay home from work.
I suspect the employee was not too productive even while he was at work. Many private companies will let highly productive employees take extra time off or pay a bonus for a job well done.
January 11th, 2010 at 3:02 pm
Cathy – Yes, the timing was unfortunate however, as an HR professional you need to uphold company policies consistently or risk being sued. If you gave that guy another chance what do you do for the next employee that is being terminated for excessive absenteeism per company policy whose latest absence is due to their child being hospitalized for an injury or illness or the employee who is absent because their dog ran away?
January 13th, 2010 at 11:19 am
Stacey,
The person had a contagious illness. This is simply an example of following the letter of the policy literally and not using common sense. In the era of H1N1, this is simply sending gthe wrong message to other employees.
January 13th, 2010 at 11:40 am
Cathy,
As a human being, I understand your point. However, the message being sent by this action is really two-fold. By remaining consistent with the policy, may enforce the fact the company will not tolerate attendance issues or abuse of sick-time which will also ensure the good employees that they are respected by showing that the co-worker who is continuously absent will not be allowed to be a continued drain on the team.
Referencing H1N1 is very timely but not really a very good argument; look at the statistics. Every year, approximately 36,000 people die from the seasonal flu in the US. Since April, 2009, there have been 2,328 deaths related to the H1N1 virus and complications caused by the virus.
January 13th, 2010 at 4:18 pm
JMF has it right. The company warned the employee of the consequences of excessive absences, had him sign a contract, then enforced the contract. Consistency in following policy is critical — without that, every employee could sue for something or other and would always win. In this case, the employee should have exercised some common sense and not abused the leave policy in the first place.
January 19th, 2010 at 3:30 pm
While I do believe in giving an employee with bona fide illness the benefit of the doubt, based on the info provided you have an employee that has abused the system and now a real situation has caught up to them. I heard FMLA mentioned but I would think that strep throat would not qualify as an FMLA protected illness. We had a single mom with years of taking the attendance point system to the very edge. Instead of firing her we would suspend her and give her another chance. After being suspended 6 times in 5 years it was evident that she would not improve. So the next time she hit the points she was termed. It was amazing to hear the people on the floor talk about how she bragged about working the system and that she had made plans for a nice long 5 day weekend during her next Suspension and would be back Monday. When she was termed she was shocked and the other employees said, “What took you so long?” With the manipulator gone our overall attendance numbers have gotten much better too. Sometimes giving others a second chance can over time back fire. Instead of the company being seen as caring and supportive of a single mother, we were being laughed at for being taken for ride.