Manager is out sick a lot - can we fire him? 01-04-2008

Our workshop manager is increasingly taking time off when he is sick. We suspect a chronic illness, but do not have any official notification. My boss wants me to find out how to deal with this situation legally. A manager's presence is necessary for the shop to run properly and our products to get done. We feel his illness is impacting his job performance and our business is suffering because of it. We don't know if we can let him go and replace him or if we need to work with him through whatever is going on.

Rita Risser replies:

The Americans with Disabilities Act (ADA) requires that employers enter into an interactive process with disabled employees. In other words, talk to him. I would say something like this: "We notice you are taking sick time, and we are concerned about your health. We don't want to invade your privacy but if you have a chronic or disabling condition, you do have rights under the Americans with Disabilities Act or the Family Medical Leave Act. And of course you are entitled to use all your accrued sick leave. We also have the right to have someone here to do the work. What can we do to resolve this situation?" Then begin your discussion.

Ultimately, once he exceeds his FMLA and sick leave, even if he is disabled he can be terminated (or released on disability) if he can't perform the essential functions of the job, one of which is to be there. However, it is best if you work closely with a local attorney if you decide to go this route.

Good luck.

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