Dear HR Guy:

We are contemplating terminating a part-time employee due to excessive absenteeism. If it were just that, I wouldn't be so concerned; however, the absences are a legitimate string of bad luck accidents, leaving the employee partially disabled. The employee can still perform the essential functions of the job, and we have attempted to accommodate his schedule around his therapy. His physical condition and newly disabled status have caused the employee mental anguish - enough to be temporarily hospitalized and currently receiving regular outpatient counseling.

Part of the doctor's diagnosis is that the employee should continue working, as this helps his sense of self worth. We don't want to contribute to the mental stress, but the absences are hindering our production. We are a small organization without enough depth to absorb these absences. Maybe I'm too much of a softie, but I really don't want to throw the employee out on the street. What do you think?

Softie

Dear Softie:

Disability is rarely the type of clear-cut affair that is easily resolved by a state or federal statute. If you were a company with more than 50 employees in a 75 mile radius, the federal FMLA (Family and Medical Leave Act, covered in a previous HR Guy column) would be able to provide you with guidelines to help resolve your dilemma. But because your company has fewer than 50 employees, you are not bound by the FMLA. Nevertheless, because we are dealing with partial disability as opposed to full incapacitation, I suggest we take a look at the Americans with Disability Act and legislation that applies to any company with 15 or more employees (part-time or full- time), who are working for the company 20 or more weeks during the current calendar year.

The ADA defines a person with a disability as someone who has a physical or psychological impairments which limits substantially one or more major life activities such as walking, speaking, breathing, working, hearing, seeing, reading, learning, caring for oneself, standing, sitting, and lifting. So long as the employee is qualified for the position in question, the ADA stipulates that the employer make "reasonable accommodation" to help the disabled employee perform his or her job. You stated that the employee can still perform the essential functions of his job. Therefore the onus is on you the employer to reasonably accommodate him.

What does reasonable accommodation entail? Well, in this particular case, it seems like you need to accommodate both the employee's physical and psychological handicaps. On the physical side, this can include things such as making his workspace wheelchair accessible or providing him with a new workspace that is more ergonomically accommodating, so he need not move around the office as much. The psychological aspects are tougher, but you can work with the employee to lessen his stresses and work with him to seek professional counseling to help him with his issues.

While the ADA can be both awkward and expensive for you - the employer - to deal with, the law does clearly stipulate that you do not have to accommodate an employee if it causes undue hardship on the company in terms of logistics or expenses. Undue hardship is not clearly defined, and while you say that your company cannot afford to absorb the difficulties associated with the employee in question, I encourage you to seek professional legal counsel in determining whether or not your claims of undue hardship are legitimate - that is, whether or not they will hold up in a court of law if the employee mounts a legal challenge.

For more information, on the Americans with Disability Act please see the Federal Equal Employment Opportunity Commission Web site at http://www.eeoc.org.

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