So today I thought it would make sense to share with you something I’ve shared with clients over the years: It is the difference between what the law requires or allows, and what you — whether you’re a business or you’re acting as a supervisor — should do.
Let me give you this example: An fifteen-year employee has lately been having some troubles at work. The performance is ok but nothing that will win awards. The employee doesn’t show up for work for three days and is not responsive to phone calls. A classic no-call, no-show at work.
It is issues like this that pose two different types of questions that employers should be asking themselves. What does the law require us (or allow us) to do? And what SHOULD we do in this situation?
Sometimes, the answers will be obvious and the same for both. Perhaps you will conclude that in the above example, a termination of employment may be appropriate.
But suppose I tweak the above example to indicate that the employee has not been feeling well of late and there’s a good possibility to believe the employee may simply be home sick or perhaps even hospitalized. The employee has never failed to call during an absence and has ten days of paid time off remaining for the year.
Going back to the questions above, it starts to get a little messier.
The law may allow you fire the employee — though query whether perhaps the employee should be FMLA eligible. But in answering the question of whether you should fire the employee, that’s where things get messier.
Often times, its the “should” question that is more of a business decision than a legal one. In other words, do you want your business to be the type of employer that will be known for taking a hard stance when employees are sick?
That may not be fair — after all the employee still has an obligation to show up. But in answering the “should” question, you can go deeper than simply looking at what the law requires or allows. Perhaps it means sending a followup e-mail or even letter to the employee.
Now, I’m not naive enough to think that employers need to bend over backwards to treat employees with kid gloves when those employees can’t take care of themselves and can’t follow rules. But I do think, on this day of atonement, that the urge to rush to judgment ought to be tempered more often.
Yes, you as an employer may have the power to terminate an employee, but that doesn’t mean that every situation really warrants it. Consider the law for sure, but also consider the facts and circumstances and ask yourself if what you are doing would seem “fair” to your neighbor.
If not, then rethink the decision. Just because the law may allow you to make a decision, doesn’t mean that its always the best decision to make.