I have an employee who just isn't working out. She is developmentally disabled and has to be constantly supervised so she brings a "mentor" to work with her. This job is easier at times than it is at others. We own an animal sanctuary and the employee is responsible for the care of 250 animals. Cages need to be cleaned and animals need to be fed and at times medicated.
This happens every day of the week, weekends, holidays etc. The employee knows this but this last season, the person that comes with them won't work on holidays or days when it's stormy. We get a call about 30 mins after starting time informing us they won't be in today.
I am fed up, how do I terminate her employment without opening the door for discrimination and do I need to provide a written reason for my decision?
Unless there is a contract with the employee that restricts when the employee can be fired, an employee is at-will, and can be let go for any reason or no reason at all, so long as it isn't for an illegal reason, like discrimination.
However, you are correct in being wary because the employee can be seen as disabled, and under the Americans with Disabilities Act (ADA), you have to reasonably accommodate the employee's disability. Even if you have substantial reason to terminate the employment, you could be caught in litigation that is far too expensive.
I suggest that you contact an employment law attorney to consult with about your next steps. You may want to consider setting up a meeting with the employee and clearly discuss expectations -- obviously, cages need to be cleaned and animals fed regardless of whether it is a holiday or the weather is bad, and the employee has to be committed to being there. If the employee cannot meet the agreed-upon standards, then I would tend to think you are well covered for the termination decision. I know that it doesn't provide you with the immediate relief you probably want, but it is probably the most cost-efficient solution. Good luck.
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You should probably contact an employment law attorney.
Answering your question(s) does not establish an attorney - client relationship. The opinion(s) I have expressed are opinion(s) only and do not constitute legal advice. If you want legal advice, you should contact an attorney directly.
The law requires that you provide a reasonable accommodation for an individual with a disability, unless to do so constitutes an undue hardship for the business.
Being "fed up" is not an undue hardship.
For her part, the employee must be able to perform the primary functions of her job, either with or without an accommodation. Bringing the mentor in to work may be seen as a reasonable accommodation, so long as it does not present an undue hardship.
Showing up to work is of course a primary function of any job, calling 30 minutes after starting time isn't acceptable. However, if you've let that slide for others, or if it's only happened once, you would probably be leaving yourself open for claims of discrimination if you terminated this employee.
The law also requires you to have a good faith, interactive process with a disable employee to determine if there's any additional accommodation that she needs to perform her job. Consider discussing with her and her mentor the source of your dissatisfaction, and see if there's anything that can be done. If her mentor is provided by a service, perhaps there's someone else from that service who can come on holidays and stormy days. The point is that the law requires all parties to be reasonable and communicate with each other. Firing her unilaterally, without engaging in any type of dialogue, is not the right way to go.
I hope this information is helpful to you.
Craig T. Byrnes
Disclaimer: Please be aware that I am not offering legal advice, nor forming an attorney-client relationship with you. I am not representing you, nor doing anything to protect your legal rights. If you believe that you have suffered a legal wrong, take action before any statute or limitations expires, or your right to do so may be lost forever. Good luck in your legal matter.
Thank you for having an animal sanctuary - animal rescue is my favorite charity. You don't need to provide any reason when terminating an at-will employee (one without a written contract for a specified time period.) You can simply state that it is not working out because of the refusal for the mentor to work on holidays or when it is stormy. It is best to keep records in the employee's personnel file to document the absenteeism, late notice of being absent, etc. If you want to try to work it out, is there a way the employee can have a different mentor for holidays or when it rains? You may want to give advise that if the mentor can't work holidays or when it rains, that you will need to let the employee go - thus, putting the blame on the mentor and not the disabled employee. If the employee wanted to sue, he/she would have to prove that the reason you fired the employee was mostly BECAUSE of the disability. You can offer severance pay that provides that the employee gets some money in exchange for her signature on a contract that states that she is waiving any and all right to sue for discrimination, etc. If you choose this route, have an employment law attorney draft the contract to make sure it will prevent a lawsuit - to the extent a contract can. Thanks again for helping animals. When I retire, I will be doing the same as a full time volunteer again. Kristine Karila, Employment Law Attorney
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