Help again.  Me –the “not HR” HR person.

We are located in California and have less than 50 employees.

I have an employee that had a close relative die.  She has been experiencing what she admits is bouts of depression and states she is seeing a therapist. Also said that she had been prescribed something that had helped but stopped taking it because she didn’t like how it made her feel. (Information passed through her manager. However no supporting documents provided or requested to date. We have no reason to doubt the validity of it.)

The death occurred about two months ago prior to my return to work from an extended leave.  The information provided to me has been somewhat sketchy but apparently during the period of time immediately following the death she began missing an extensive amount of time on a consistent basis. Much of this time was without notification to the company. It is my understanding at one point after not being to reach the employee for x amount of days (more than the handbook referenced 3 days) when she had been expected back to work that we actually considered sending a job abandonment notice.  She ended up being out for about a month. Again, in my absence I do not believe any sort of agreed upon leave of absence had been discussed, etc. There was almost no interaction with the employee during this time and nothing official. I returned to work and was told she was expected back also and we were waiting to see if she showed up.

She did and for a short period of time was attempting to come in each day – it lasted for almost two weeks. She has begun missing work again, and most the time with barely any notice. She was expected in today after missing 3 days last week and (1) emailed to say she would be in late then (2) texted her manager to say she couldn’t get out of bed.

The company has been more than understanding and extremely lenient (to our detriment in my opinion.) Her manager has not wanted to pursue any disciplinary action to date but with the latest round of absenteeism and the burden it is placing on her/her team we need to start the process to either have the employee make corrective action or leading to her termination.

As we put off doing anything about this for so long I am looking for some guidance.  I am suggesting a meeting tomorrow where she will either be given an initial verbal or written disciplinary action form. Recommendation on one or the other?

Based on the employee’s mental state and prior attitudes, I believe there is a good chance that this may not go well. I think there’s as good of a chance that she will walk off the job as there is that she will quietly acknowledge the problem & promise to work on it. 

If we follow a set documented procedure where we specify the corrective action needed and our expectations, and follow-up if this is not met, are there any other ramifications to consider? I.E. her mental state – we do not believe we are being discriminatory. She also has not actually provided any doctor notes for anything or requested leave. Due to the size of her department and the prior time off I’m not sure her manager/department head would be willing to grant a leave of absence.  In addition, I think this is actually being brought to a head because of the absenteeism/illness of another departmental employee. Small call support department is now down to three from five and it is not enough to cover the hours of operation.  However this was an issue that was going to need to be dealt with soon without the other employee’s illness.

And if she does end up with a doctors note? It is placing a burden on our small company but then do we open ourselves up for an issue since we now have the 2nd person in the department on a doctor's leave (medical) ? The same absences issue hasn't been there for him but recently did start having more absences as he was ill.   

Any suggestions or comments or things I should be aware of?

As a postscript. We do like the employee and would like to keep her. We are concerned for her mental health and on non-official basis made suggestions - like continuing with the meds if they were helping. We've invested a year in her training so far and would probably have to start over with a new hire.

These kinds of issues can be sticky.  Let's face it, in this country, if someone wants to sue a company they will, regardless of how careful you are about handling their employment . . . but if you follow some basic steps, your company will be protected as much as it can be. 

1. Is there written policy regarding absenteeism, or disciplinary actions in general?  If there is, you must follow it uniformly to all employees.  It doesn't sound like there is any policy written in this case, so then you go to step 2 . . .

2. Look at any similar circumstances in the company's past and how they were handled.  If this person is in a "protected category" (meaning basically ANY group other than white, straight, males) then you must be absolutely certain that you are handing out discipline that is consistent with previous practice.  For example, if you gave 5 verbal warnings and two written warnings to a male employee in a similar circumstance but then fire the female employee with less verbal or written warnings, your company could be liable for a discrimination claim.  Previous circumstances establish a standard practice for handlings that you can be bound to follow for all employees where there is no written policy to follow. 

3. If the employee is in a situation that is clearly unique and there is no established standard of disciplinary gradient to rely on, then you can handle her how you see fit . . . just be sure it is a standard practice your company will be willing to continue in the future for other employees, because now you will be establishing the "norm" for how these circumstances are handled.  So, you can terminate her if you want, but that means you must be consistent and do that with anyone else in the same boat.  

Probably, your best bet is to issue a written warning, with explicit description of what is expected for her going forward.  Make the description as tough as necessary.  And make it very, very plain:  The employee will be replaced if she cannot carry out the functions of her job consistently.  And a re-evaluation will occur at a specific date, provided satisfactory attendance is shown. Employment courts generally frown on absenteeism and will back up an employer on these issues as long as they are well documented.  

As for the human aspect, I always approach these things with alot of compassion.  I have an employee in a very similar situation.  We have given her alot of leeway and understanding, but recently, her manager and I sat down and let her know that although we really feel for her, and want to support her in any way possible, we also have a responsibility to our company (as she does) and unfortunately, buisness is buisness, and we NEED her to be here on the job consistently.  If she can't, we understand, but the company must go on.  For the sake of all its employees and customers, we cannot continue to simply do without her on the job.  So as hard as it must be, she needs to find a way to be on the job.  And the company is not being unreasonable to demmand that.  Especially after all the courtesy she's been shown to this point. 

So just be sure that what you do doesn't go against established practices in the past . . . and be very honest and transparent with the employee.  Make your expectations known, understood, and written.  If she blows up and quits, so be it.  You are not being unreasonable to expect that an employee show up for work.

If you do this, the likely outcome is that she'll try hard for a week or two and then slip back into the habit of missing work, and if that happens, you MUST follow through on your warning exactly as you said you would.  Then there is no debate.

Hope that helps.