Disciplinary meetings do not always go as planned. For example, employees sometimes choose this moment to disclose new information that may raise legal concerns. Steven T. Collis, an editor of the Colorado Employment Law Letter, has five steps for employers to reduce lawsuit worries—so ensure your managers are trained appropriately.
During and after a disciplinary meeting, when faced with an employee’s previously undisclosed medical condition, a new complaint of harassment, or another issue, consider taking these steps to help reduce the risk of liability.
Step 1: Weigh the severity of the employee’s misconduct against the risk of liability. If an employee has engaged in severe misconduct, such as workplace violence, it may still be in your best interest to go forward with the planned discipline or termination.
As long as you treat the employee the same as other employees who have engaged in the same sort of severe misconduct, the risk of liability for a discrimination or failure-to-accommodate claim is likely low. Make sure that the facts support your discipline or termination decision, and that you have properly documented the events before taking action against the employee.
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For less severe infractions, such as attendance issues or failing to meet performance goals, going forward with the termination or discipline may be risky in light of the new issues raised by the employee. You likely will need more information about the employee’s medical condition or newly filed complaint before you can make an informed decision about your next step.
In addition, you must know whether the employee’s supervisor (or anyone else in the decision-making process) had previous knowledge of the employee’s medical condition or complaint. If so, the best practice is to inform the employee of his or her performance problems or misconduct at the meeting and explain the consequences of his or her conduct, but postpone imposing discipline until you have had an opportunity to confirm the new information. If appropriate, place the employee on paid administrative leave while you investigate the issue.
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Step 2: Have written policies, and follow them. Good policies will provide you a road map for handling most employee issues. For example, if an employee asserts that he or she has been sexually harassed by his or her supervisor, follow your harassment policy, and initiate an investigation to determine whether harassment is occurring at your company.
If so, take appropriate steps to stop it. If an employee reveals a medical issue, determine whether it qualifies as a serious health condition under the Family and Medical Leave Act (FMLA). Then, follow your FMLA policy and provide necessary notices and forms. If an employee asserts his or her medical condition is work-related, handle it as a workers’ comp claim, and follow your workers’ comp procedures.
In tomorrow’s Advisor, we’ll cover the next three steps to successfully mitigating your liability in this sort of situation.