Q. We have an employee (an officer at the bank) who was out six months with a heart condition. He has hadon and off since then. He was hospitalized again with pneumonia and returned looking very bad, but his doctor says he's fine to return to work. We approached him about taking disability and SSI benefits, but he refuses. Now we face a morale issue because he constantly talks about his illness and his co-workers feel he isn't performing. If we terminate him, what is the best approach? —C.T., N.J.
A. You should never terminate an employee merely because he looks "bad." Nor should you encourage a "bad-looking" employee to apply for disability or SSI. So, yes, you made a mistake here.
Because you've encouraged this employee to seek disability benefits, you've provided him with ammunition to file a claim that you "regarded" him as disabled under the ADA. And employees who are "regarded as" disabled earn the same legal protection as those who truly are disabled.
If his attendance problem grows worse, you could make an argument that, because of his high-level position, he can't perform the essential job functions under the ADA. Alternatively, if his performance is unacceptable, you should start documenting that fact and issuingas appropriate. You can also issue warnings and discipline related to his health complaints and their effect on company operations and morale.
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