A: There are several issues involved here:
- The poor performance—which may or may not be being influenced by the health issues
- The health issues—which potentially bring in ADA (Americans With Disabilities Act) concerns and protections
- The potential remedies—such as an FMLA (Family and Medical Leave Act) leave to get treatment—and the question of whether she could be validly terminated subsequent to returning from leave.
This is an excellent example of exactly when schools need to consult with an employment attorney.
While an HR professional can give general guidance on ADA and FMLA concerns, the only person who can appropriately and expertly advise in complex cases such as this is a qualified employment attorney. The risks of any particular course of action will depend in large measure on the specific facts—such as the exact wording of the warnings that were given, the school’s historical process when letting faculty go, whether or not the employee is deemed to be disabled and/or eligible for FMLA leave, etc. We urge all schools in this situation to consult directly with their employment counsel (or to use this as a reason to establish a relationship with a labor attorney, if such a relationship isn’t already in place).
