Dying employee has bad attitude -- can we fire him? 01-19-99

I was wondering if you can provide some general advice on dealing with an employee issue that I'm struggling with. This employee tends to be very negative and is creating a morale issue in our group and other groups as well. This person recently disclosed to me that he has a terminal illness. He refuses to accept any feedback from me and doesn't care about his performance since he "won't be alive much longer". I'm struggling with treating this as a standard performance issue since he has not asked for any special accomodations. I have tried to counsel this person on improving his performance but he keeps coming back to "my life will be ending soon so why should I care". Do I have an obligation to this person to make a special accomodation even though he claims that he doesn't need any special treatment? How should I separate out the performance issues from the ADA issue? I'm in a situation in which I can't stand around and do nothing since his interactions with people are affecting them as well.

Rita Risser's response:

This is a very complicated situation, one that needs a good employment lawyer now. Here are some general ideas.

You are right that you should focus on the performance. The ADA says you can't discriminate against people with disabilities. Thus, if you treat him the same as if he was not disabled, generally you are doing the right thing.

As you note, he may be entitled to accommodation. The law is unclear whether the employee has to ask for an accommodation or not. But since you are on notice, I think it best if you try to offer an accommodation. What would be a reasonable accommodation in this case? One might be to give him time off, either as FMLA leave, disability leave, or some other leave. It may be that he thinks he has to work for financial reasons, but if you have some way to continue his pay while he takes time off, that may help.

You may be able to refer him to counseling through an Employee Assistance Program, but this must be done carefully and with the advice of an attorney. If he allows others to know about his condition, maybe a reasonable accommodation would be to ask the other employees to be more forgiving and tolerant of him. (You can't reveal his medical condition without his permission.)

You could certainly ask him what accommodations he would suggest.

Bottom line, if he refuses all accommodations, you can treat him the same as anyone else with poor performance. From a values perspective, you need to decide what is more important to you: having a smoothly running operation, or bending over backwards to accommodate him.

Best of luck to you.

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