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INSIGHT

Fear in termination: the sympathetic plaintiff

By Steve M. Cohen  bio

I recently saw a story about an employee who was terminated by her (small-business) employer. This employee had numerous experiences of personal tragedy in her family. In the previous year, she had lost one of her parents, another relative passed away, and then her son developed kidney failure. She found out that she was a viable donor and completed the surgery to donate one of her kidneys to her son. During her recuperative period, her employer hired someone to replace her. It appears that she found out about her termination when she attempted to return to work.

Her story was presented on the national media. Not surprisingly, the former employer was vilified, while she is being honored. The media reported that she has contacted an attorney and that a wrongful discharge lawsuit is being considered.

The legal environment is murky. This company has less than 50 employees and, therefore, is not held accountable to comply with the Family Medical Leave Act (FMLA). However, they have exceeded the number of people to be accountable to the Americans with Disabilities Act (ADA). Although it’s difficult to determine if she has a legal case, the company has created a problem. What should they have done with someone who is, at least potentially, such a sympathetic plaintiff?

Some people do seem to walk around with a dark rain cloud hovering immediately over their heads. These people rarely make the best employees. We have all seen people who just can’t seem to catch a break in this life, and we have known people like this in the workplace. They tend to pull on our “heartstrings,” and often we marvel at their ability to cope and tolerate the misfortune that seems to follow them endlessly. Most of us would like to help if we could.

There is another dimension that factors into the case or situation like this: the dimension is that the government hates it when employers take action against employees because of health related matters. The state’s Human Rights Commissions and the Department of Labor can always be counted upon to weigh in on the side of the employee in any of these matters. In most cases, the truth is that the situation is not the fault of the employer, and it may not even be the fault of the employee.

In some cases, lifestyle choices can be at the heart of the problem. People choose to smoke or drink or make other high-risk choices that tend to have a deleterious effect on employability. In other instances, lifestyle plays no role in the malady. People don’t choose to get kidney stones, brain tumors or Parkinson’s disease. Things like that just happen, and employees have to deal with them, as do employers.

In any competitive market, employees need to be delivering 100 percent of the time, and there is little tolerance for circumstances that have a detrimental effect on productivity. Employers want to have peak performance and productivity at work, and they need to create an environment that fosters it. Clearly, there must be some allowance made for temporary setbacks for employees because we want to live in a just and fair place. Let’s remember that our values are on display with every decision that we make.

This employee demonstrated her values by donating a kidney to her ill son. The employer could have addressed both matters: the need for productivity and the need to support an employee. They did not really have to choose one or the other—they could have chosen both. They did choose, obviously badly, and now they’re paying for it on the national PR stage.

If this company had been my client, I would’ve never recommended that they terminate this employee. I would’ve recommended that they celebrated this employee’s decision. They could have turned this situation into one of altruism, instead of a lawsuit.


Steve M. Cohen, Ed.D., CMC is President/Partner of Labor Management Advisory Group, Inc. and HR Solutions: On-Call, both based in Kansas City, MO. For more information, visit www.laborgroup.com or call (913) 927-0229.


The above information is shared by a guest contributor and does not necessarily reflect the views of Medical Office Manager.

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