A: While the school is undoubtedly operating from compassionate motives, it should remember the adage that "no good deed goes unpunished." While this is said slightly tongue-in-cheek, the school is urged to proceed with significant caution in anything potentially involving employee health or disability. That said, this must be balanced against the school's responsibility to protect its students and other employees from harm. What, then, to do?
1. Consult with your employment attorney.
2. Consult with your employment attorney.
3. Consult with your employment attorney.
We're happy to suggest a few considerations that the attorney will explain in more detail:
- Focus on performance—the most important thing the school can do is to accurately observe and assess performance—i.e., how the person carries out his/her job duties and how he/she actually behaves on the job.
- EAP—does the school have an EAP (Employee Assistance Plan) available as part of its employee benefits program? If so, determine whether the EAP can be offered as a resource to assist the employee with any personal issues he/she may be experiencing.
- Remember that we're not medical doctors—avoid the strong temptation to "diagnose" the employee's "problem."
- Remember that we're not counselors—even if you are trained and certified in counseling, this is not your role as a private school administrator. It is most appropriate for an employee to be referred to qualified counsel other than yourself.
- Be aware of ADA and FMLA considerations—the Americans With Disabilities Act (ADA) protects an ever-growing list of disabilities and has established parameters regarding "reasonable accommodations" that employers are expected to make. These may come into play in the situation at hand. Similarly, Family Medical Leave (FMLA) requirements may come into play. The interaction between these laws is complex and should be left to expert counsel.
Given the above complexities and concerns, it is vital to get the counsel of a labor attorney, who will need to know the specifics concerning the situation.
Once a month, ISM's Human Resources Consultant Michael Brisciana will answer an HR-related question submitted by one of our readers. To ask Michael a question to be addressed in future e-letters, please click here.
