Ask the legal consultant: when good employees go bad: what do you do when a staff member crosses the line? You asked. Our lawyer answered

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Author: Pamela J. Miller
Date: Oct. 15, 2012
From: Review of Optometry(Vol. 149, Issue 10)
Publisher: Jobson Medical Information LLC
Document Type: Article
Length: 2,377 words

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The number one headache for most private practitioners is managing staff members.

To that end, Review asked for your toughest staff problems, and then asked me to answer them. So, as a lawyer, a practice consultant and a practice owner, here's my best advice.

A Toxic Environment

Q We recently moved to a new location. The new office is great. Everyone loves it--except one staff person appears to be allergic to something. She sneezes and coughs and frequently has to blow her nose. No one else is affected. It does not appear to be seasonal. She can control it if she takes OTC allergy meds. On rare occasions, it is so bad that she has been unable to work and has gone home early. We have put in a new AC unit and paid to have all the ducts cleaned, but it has not helped her. My question: How much more am I required to do for this employee? What more can I do? If she is the only one affected, how much of it is her responsibility?

--Dr. W.

Tampa, Fla.

A You have several issues to think about when considering your obligation to employees.

First, find out if you are in an "employment at will" state. If so, that means you can let an employee go for any reason.

Second, consider the issue of "reasonable accommodation" for "disabled" employees. Reasonable accommodation means that an employer must make a reasonable effort (whether in cost, time, etc.) to address an employee's disability (which may be permanent or temporary) to help the employee perform his or her responsibilities. This may entail allowing an individual to assume other office responsibilities in place of those performed in the past. Each case is unique and one size doesn't fit all.

Third, what do you have written in your office policy manual?

Fourth, do you have a contract with this employee and what are your grounds for termination?

I'm assuming that this employee had no difficulty in the previous Location, and this onset of allergy response is new and not improving. If she is able to control it with OTC allergy medications, then you may wish to simply offer to pay for those meds on the days she is working. This should satisfy the "reasonable accommodation.")

Of course, a better option is for her to get tested by an allergist and find out what specifically she is allergic to, and then try to mitigate the offensive allergen. You have already gone beyond what would be considered reasonable accommodation at this point with respect to the immediate environment.

The bottom line: How valuable is this employee to you? Does she have to work directly with your patients, or can she work in billing or another back-office setting where patient contact is minimal? You will ultimately lose patients if she is constantly sneezing, coughing and blowing her nose when she is with your patients; the other employees will also become more uncomfortable around her. Furthermore, you have...

Source Citation

Source Citation
Miller, Pamela J. "Ask the legal consultant: when good employees go bad: what do you do when a staff member crosses the line? You asked. Our lawyer answered." Review of Optometry, vol. 149, no. 10, 2012, p. 60+. Accessed 5 Mar. 2021.
  

Gale Document Number: GALE|A310520285