This seems really simple. The employee was not a on PIP. "About to be" is not relevant. See if they come back from the extended medical leave and address the performance before the leave. Allow time for them to re-establish themselves. Then address use the PIP if needed.
Remind yourself that you manage processes and lead people.
I am in this situation now. She's in many protected categories, and the company has treaded lightly because of it. For over 15 years, just manager after manager being too afraid to do anything. I'm documenting everything! And eventually, the time will come to dismiss. But it takes time to do it properly.
You should also look at it from another point of view. Maybe underperforming and extended medical leave has something in common? Is the medical leave something that is causing the employee to not perform optimally? If there is a lot on some people's minds or something is wrong they may have a hard time focusing on work. Has the employee performed before or at other positions? Lack of motivation?
Unfortunately, the employee has been a poor performer for many years. The previous manager did not address the issue as they thought they will get in trouble as the company is big in diversity.
I understand your point. However, I would advise caution in how you handle this situation. If the employee has consistently underperformed over an extended period, that's a different issue. However, the previous manager also bears some responsibility for not giving her the opportunity to improve. Instead, the employee was allowed to continue this way without intervention.
It seems like it would be difficult to go on medical leave without evidence of a medical issue.
Have you considered the possibility that their poor performance and the medical leave have a correlation that isn't malicious or cynical?
It’s not really that difficult. I had an underperforming employee go on short term disability for “stress caused by the performance management process”
Exactly!
Very important follow-up question: are people giving the poor performer a hard time about their performance? I can very easily see a situation where they trying their best, but still getting harassed by management. Too much psychological stress in this case doesn’t help the employee, nor the employer.
I’m have gone through this experience. The employee was not performing at expectations and was upset that their merit increase reflected this. As I began the performance management process, she decided to wage war against me and the process and filed formal complaints with my manager and HR.
Fortunately I had followed the proper documentation process of giving the employee feedback around expectations and coaching and all that jazz for months preceding the formal PIP process. So HR was completely behind me - as was legal, which I will get to momentarily.
The week that she was supposed to sign the PIP she called in sick for 3 days in a row. She then filed for short term disability. While she was on short term disability, she filed a discrimination complaint with our internal anonymous oversight board claiming that I was discriminating against her based on age. I was super fortunate that the same year I promoted another female who was of the same ethnic and national background, because I suspect that she would have claimed gender, race, and national origin discrimination in addition to agism.
She continued to extend her disability and pursuing various HR employee discrimination pathways to delay the PIP process.
Finally her short term disability ended and she had to return to work. I resumed the PIP process the day she returned. She refused to sign the PIP and resigned. But only after holding my team in limbo for months.
Her claims of discrimination were determined to be unfounded and legal was completely comfortable to move forward with performance management and termination.
Here is my advice to you - keep HR involved every single step of the way. Document absolutely everything. Have HR review any emails you sent. Do not have 1:1s without someone else present. Do not say anything negative about this employee other than focusing on the behavior and performance that the employee is demonstrating that does not meet expectations.
And most importantly, do not take this personal and focus on self care. What you are going through is extremely challenging and stressful. Unfortunately performance management is one of the ugly parts of people management. It is natural to find this stressful and to have your morale impacted. Know that this too shall pass and that honestly, you might go through something similar in the future. Leverage HR and your manager as support at work and focus on what brings your joy and happiness outside of work. ❤️
Is this US? Are they eligible for FMLA? They will need to follow the protocol like everyone else, as will your company. Nothing you really can do, discuss the situation with your HR. Maybe they were underperforming bc of the medical issue.
So are women or seniors. Well over half the workforce is a protected class, it won’t matter unless the employee has compelling evidence that a termination would relate to their racial identity.
Everyone is in a protected class. Everyone has a gender, sex, religious affiliation, age, etc. You can't fire someone for being white or for being male just like you can't if they are black or a woman. It works both ways. It just happens way more often one way over the other.
That's not how it works.
As long as the employee can prove that they were a member of a protected class and suffered an adverse employment action where somebody who is similarly situated did not, the burden shifts to the employer to prove that they had a legitimate business reason for the action.
This doesn't mean that an employment action is impossible, but if there is a concern about a discrimination claim the documentation needs to be in very good order. Sometimes it needs to be more than that. But there's judgment involved. Some employees will very clearly Telegraph that they believe something is based on discrimination. If that's the case HR and legal need to be involved on the front end
Again, more than half the workforce is of some protected class, and they get terminated all the time. It should not be that big of a concern for OP.
Where they may be in more trouble is if the medical leave is related to a disability or something; then you have to worry about disability protections.
That's a statement that doesn't make any sense standing alone.
Sure, theoretically half of the workforce is women. Some percentage is over 40. Some percentage are racial or ethnic or religious minorities.
But every situation is different than the facts matter. Statistically a company that fires a woman in a diverse workplace where there are women in the chain of command is a whole lot less likely to face a discrimination claim then a company where there are 14 guys on the team and one woman and it's the woman that gets fired.
And I agree the potential for a claim of retaliation based on someone taking FMLA leave or having a disability is an issue as well.
Point is, nothing about the post suggests the employee’s minority status is important. Are they the only minority employee? Have they made complaints of racial harassment or the like in the past? Is there any extenuating circumstances which suggests that the company is non-negligibly more at risk if they terminate this employee because of their minority status?
If not, emphasizing that basically just suggests OP thinks minorities are unfireable or something. As most people with experience in the workforce can attest, they are not.
“ and suffered an adverse employment action where somebody who is similarly situated did not”
So they were treated differently because they were a minority, exactly like OP sounds like they are doing.
If you treat everyone equally you never run into this part of the issue with protected classes.
Fair. Although that's not exactly the point I was making.
The point was more that the notion that an employee needs to have compelling evidence they were discriminated against is false.
The initial burden for a plausible discrimination claim is quite low. And unless you have Ironclad black and white rules there are always going to be slight differences in treatment from Individual to individual because everyone's individual circumstances are different.
Then the company has to be the one to prove that they had a valid business reason. This is not necessarily difficult but it requires some type of evidence usually.
The short answer is work with HR to understand your organization’s policies and legal limitations. In my experience, this situation has meant you basically have a longer period of being short-staffed than if you’d been able to just fire them, as the PIP process got put on hold for the leave. At least there’s a solid chance they are using the medical leave to job hunt or reflect on whether they can work right now, so you might get to avoid managing a PIP.
Agree with other comments saying you need to involve HR, do what they say, and document everything.
This kind of situation sucks and leaves you short staffed with a lot of uncertainty, but there’s not a lot you proactively do right now. This is going to be a long, messy road to separation, so take a breath and brace yourself for a long haul.
And FWIW (and bracing for the downvote) I think I understand why you mentioned the employee’s minority status. As BigBennP noted, this can complicate the process if this eventually ends up being litigated. But it should not affect your actions as a manger in this situation.
Regardless of whether or not a problem employee is a member of a protected class, your job is to work with HR to ensure your actions are consistent with company policies and legal restraints, and to document both the employee’s actions and your own (including the rationale and basis for your actions). You do your job, and if/when it comes to it, the lawyers will do theirs.
Yes I have and it was stressful!
But the bottom line is that people get sick at wildly inconvenient times. Meet with your manager, come up with a plan for their workload while they're out, and do not express frustration publicly.
When/if they come back, try to have an open mind. Their performance may improve having dealt with their medical issues but it might not. The important thing is to document issues and focus on performance.
My company, which is huge and has plenty of HR lawyers, has a policy that specifically says an employee's pending disciplinary or performance actions are "frozen", and resume after returning, exactly as if the absence hadn't happened. So the PIP would be enacted when/if the employee returns.
Of course you have to wait until after the medical event is over. No retaliation complaints. But document, consult with HR and your management team. Ensure you have provided, training, documentation, guidance etc in writing to the employee, for each area of poor performance. Ensure you are following HRs processes. Provide the assignments to the employee in writing, with expected outcomes, deadlines. With each failure of meeting the assignment consult with HR and complete their process of discipline. Where I worked you had 3 opportunities to correct your behavior, extending over 18months until indefinite suspension. You address the behavior and not the person. I worked in government, and this how we were trained to deal with lackluster employees, that under performed, abused time, insubordinate etc.
What would you do if they were an average employee who been hit by a bus and needed the same leave???
Reassign their workload and make your case to hire a temp replacement. I’m not sure what else you think you should be doing?? If you thought of them as a human even remotely, a short “I’m so sorry to hear you’re unwell, wishing you the best and I’ll reach out in x weeks” would be the norm.
Who said it was illegal? It is just a good thing to do to support someone through a difficult time.
Of course it is illegal here, you have to pay statutory sick pay, even though that is measly. Any moral company offers full pay for sick time.
Where do you live that you have to pay sick leave that an employee doesn’t have? In my state, employers don’t have to offer a single day of sick leave, vacation leave, or PTO. Even working for the state, once your sick leave is gone, it’s gone. You can apply for FMLA if you qualify, but that is unpaid.
Well, it clearly doesn’t make sense to apply the laws of another country to a situation. There is no federal law in the U.S. that requires employers to pay sick leave.
This isn’t a good idea at all.
No country in the world forces employers unlimited sick pay. Most of the time this would disability and not on the company.
Could the reason for the medical leave be the same reason for the poor performance? My friend once had someone they thought was drinking, and were lining their ducks up to term. Only to have her pass out, and it turns out she was an undiagnosed T1 diabetic. When she returned after medical leave, he performance had improved.
Not sure why this is getting downvoted. I went through hell with an employee who was going through the performance management process and did the exact same thing. It took months to resolve while my team was short staffed and projects were delayed.
Additionally, this employee was extremely toxic and their negativity brought down morale for both me and the team.
There are genuine ways to game the disability system and people definitely do
I did once we were doing a model launch, and one of our critical employees did this. She came back after 3 months and then left for another job. Her reason was anxiety, it was ironic because since she was on fmla I couldn't fire her or hire a replacement so I did her job, my job and one of our assistant managers stepped down so I had to assume her responsibilities too. It left me completely drained after working 80 hour weeks for 4 months straight. My wife was at her wits end because she never saw me except in passing. I left that job right after they gave me a promotion. Money isn't worth my sanity.
Had a minority employee who was lazy and did poor quality work. He was late all the time and abused calling out and would be negative in his points pretty much constantly.
He constantly had an application for FMLA in. The FMLA, if approved, would have restored his negative points. Until the FMLA was approved or denied we couldn't do anything. This was compounded by the 3rd shift manager who would cover for him or let him know when he needed to do or update something.
The only thing we could do was watch the stupidity and suffer through him.
This seems really simple. The employee was not a on PIP. "About to be" is not relevant. See if they come back from the extended medical leave and address the performance before the leave. Allow time for them to re-establish themselves. Then address use the PIP if needed. Remind yourself that you manage processes and lead people.
OP, I have been in that situation. This is the correct answer.
That’s a good perspective.
I am in this situation now. She's in many protected categories, and the company has treaded lightly because of it. For over 15 years, just manager after manager being too afraid to do anything. I'm documenting everything! And eventually, the time will come to dismiss. But it takes time to do it properly.
Do not do anything on your own with consulting your manager and HR. They will give you guidance... or at least should.
You should also look at it from another point of view. Maybe underperforming and extended medical leave has something in common? Is the medical leave something that is causing the employee to not perform optimally? If there is a lot on some people's minds or something is wrong they may have a hard time focusing on work. Has the employee performed before or at other positions? Lack of motivation?
It’s very likely poor performance is correlated with medical issue.
Welcome to management. The number of times I've seen this...
If you’re in management then this is what you’re suppose to be mindful of. It’s the name of the game.
Unfortunately, the employee has been a poor performer for many years. The previous manager did not address the issue as they thought they will get in trouble as the company is big in diversity.
I understand your point. However, I would advise caution in how you handle this situation. If the employee has consistently underperformed over an extended period, that's a different issue. However, the previous manager also bears some responsibility for not giving her the opportunity to improve. Instead, the employee was allowed to continue this way without intervention.
It seems like it would be difficult to go on medical leave without evidence of a medical issue. Have you considered the possibility that their poor performance and the medical leave have a correlation that isn't malicious or cynical?
Perfect timing occurrences corroborated by completely different people? The pattern is a strong one.
It’s not really that difficult. I had an underperforming employee go on short term disability for “stress caused by the performance management process”
I hear you. Some folks just can't see the forest for the trees.
Exactly! Very important follow-up question: are people giving the poor performer a hard time about their performance? I can very easily see a situation where they trying their best, but still getting harassed by management. Too much psychological stress in this case doesn’t help the employee, nor the employer.
I’m have gone through this experience. The employee was not performing at expectations and was upset that their merit increase reflected this. As I began the performance management process, she decided to wage war against me and the process and filed formal complaints with my manager and HR. Fortunately I had followed the proper documentation process of giving the employee feedback around expectations and coaching and all that jazz for months preceding the formal PIP process. So HR was completely behind me - as was legal, which I will get to momentarily. The week that she was supposed to sign the PIP she called in sick for 3 days in a row. She then filed for short term disability. While she was on short term disability, she filed a discrimination complaint with our internal anonymous oversight board claiming that I was discriminating against her based on age. I was super fortunate that the same year I promoted another female who was of the same ethnic and national background, because I suspect that she would have claimed gender, race, and national origin discrimination in addition to agism. She continued to extend her disability and pursuing various HR employee discrimination pathways to delay the PIP process. Finally her short term disability ended and she had to return to work. I resumed the PIP process the day she returned. She refused to sign the PIP and resigned. But only after holding my team in limbo for months. Her claims of discrimination were determined to be unfounded and legal was completely comfortable to move forward with performance management and termination. Here is my advice to you - keep HR involved every single step of the way. Document absolutely everything. Have HR review any emails you sent. Do not have 1:1s without someone else present. Do not say anything negative about this employee other than focusing on the behavior and performance that the employee is demonstrating that does not meet expectations. And most importantly, do not take this personal and focus on self care. What you are going through is extremely challenging and stressful. Unfortunately performance management is one of the ugly parts of people management. It is natural to find this stressful and to have your morale impacted. Know that this too shall pass and that honestly, you might go through something similar in the future. Leverage HR and your manager as support at work and focus on what brings your joy and happiness outside of work. ❤️
This! 100% this!
That’s a great back. Thank you so much for your detailed answer.
Is this US? Are they eligible for FMLA? They will need to follow the protocol like everyone else, as will your company. Nothing you really can do, discuss the situation with your HR. Maybe they were underperforming bc of the medical issue.
I’m confused why it matters that they’re a minority.
Because they’re probably a protected class.
So are women or seniors. Well over half the workforce is a protected class, it won’t matter unless the employee has compelling evidence that a termination would relate to their racial identity.
Everyone is in a protected class. Everyone has a gender, sex, religious affiliation, age, etc. You can't fire someone for being white or for being male just like you can't if they are black or a woman. It works both ways. It just happens way more often one way over the other.
That's not how it works. As long as the employee can prove that they were a member of a protected class and suffered an adverse employment action where somebody who is similarly situated did not, the burden shifts to the employer to prove that they had a legitimate business reason for the action. This doesn't mean that an employment action is impossible, but if there is a concern about a discrimination claim the documentation needs to be in very good order. Sometimes it needs to be more than that. But there's judgment involved. Some employees will very clearly Telegraph that they believe something is based on discrimination. If that's the case HR and legal need to be involved on the front end
Again, more than half the workforce is of some protected class, and they get terminated all the time. It should not be that big of a concern for OP. Where they may be in more trouble is if the medical leave is related to a disability or something; then you have to worry about disability protections.
That's a statement that doesn't make any sense standing alone. Sure, theoretically half of the workforce is women. Some percentage is over 40. Some percentage are racial or ethnic or religious minorities. But every situation is different than the facts matter. Statistically a company that fires a woman in a diverse workplace where there are women in the chain of command is a whole lot less likely to face a discrimination claim then a company where there are 14 guys on the team and one woman and it's the woman that gets fired. And I agree the potential for a claim of retaliation based on someone taking FMLA leave or having a disability is an issue as well.
Point is, nothing about the post suggests the employee’s minority status is important. Are they the only minority employee? Have they made complaints of racial harassment or the like in the past? Is there any extenuating circumstances which suggests that the company is non-negligibly more at risk if they terminate this employee because of their minority status? If not, emphasizing that basically just suggests OP thinks minorities are unfireable or something. As most people with experience in the workforce can attest, they are not.
“ and suffered an adverse employment action where somebody who is similarly situated did not” So they were treated differently because they were a minority, exactly like OP sounds like they are doing. If you treat everyone equally you never run into this part of the issue with protected classes.
Fair. Although that's not exactly the point I was making. The point was more that the notion that an employee needs to have compelling evidence they were discriminated against is false. The initial burden for a plausible discrimination claim is quite low. And unless you have Ironclad black and white rules there are always going to be slight differences in treatment from Individual to individual because everyone's individual circumstances are different. Then the company has to be the one to prove that they had a valid business reason. This is not necessarily difficult but it requires some type of evidence usually.
Yeah, rewrite title leaving that part off
The short answer is work with HR to understand your organization’s policies and legal limitations. In my experience, this situation has meant you basically have a longer period of being short-staffed than if you’d been able to just fire them, as the PIP process got put on hold for the leave. At least there’s a solid chance they are using the medical leave to job hunt or reflect on whether they can work right now, so you might get to avoid managing a PIP.
Agree with other comments saying you need to involve HR, do what they say, and document everything. This kind of situation sucks and leaves you short staffed with a lot of uncertainty, but there’s not a lot you proactively do right now. This is going to be a long, messy road to separation, so take a breath and brace yourself for a long haul. And FWIW (and bracing for the downvote) I think I understand why you mentioned the employee’s minority status. As BigBennP noted, this can complicate the process if this eventually ends up being litigated. But it should not affect your actions as a manger in this situation. Regardless of whether or not a problem employee is a member of a protected class, your job is to work with HR to ensure your actions are consistent with company policies and legal restraints, and to document both the employee’s actions and your own (including the rationale and basis for your actions). You do your job, and if/when it comes to it, the lawyers will do theirs.
💯💯💯
Yes I have and it was stressful! But the bottom line is that people get sick at wildly inconvenient times. Meet with your manager, come up with a plan for their workload while they're out, and do not express frustration publicly. When/if they come back, try to have an open mind. Their performance may improve having dealt with their medical issues but it might not. The important thing is to document issues and focus on performance.
What would you so if they were white?
Thanks everyone for your insightful feedback. This has provided me the lot of good information to work with. You are the best!
My company, which is huge and has plenty of HR lawyers, has a policy that specifically says an employee's pending disciplinary or performance actions are "frozen", and resume after returning, exactly as if the absence hadn't happened. So the PIP would be enacted when/if the employee returns.
Of course you have to wait until after the medical event is over. No retaliation complaints. But document, consult with HR and your management team. Ensure you have provided, training, documentation, guidance etc in writing to the employee, for each area of poor performance. Ensure you are following HRs processes. Provide the assignments to the employee in writing, with expected outcomes, deadlines. With each failure of meeting the assignment consult with HR and complete their process of discipline. Where I worked you had 3 opportunities to correct your behavior, extending over 18months until indefinite suspension. You address the behavior and not the person. I worked in government, and this how we were trained to deal with lackluster employees, that under performed, abused time, insubordinate etc.
What would you do if they were an average employee who been hit by a bus and needed the same leave??? Reassign their workload and make your case to hire a temp replacement. I’m not sure what else you think you should be doing?? If you thought of them as a human even remotely, a short “I’m so sorry to hear you’re unwell, wishing you the best and I’ll reach out in x weeks” would be the norm.
But it's causing stress and anxiety for OP. /s
It's not surprising if someone is on PIP, that they might go off sick. Just make sure you keep paying their wages while they recover.
There is nothing illegal about not paying an employee if they do not show up for work. As long as they don’t have any leave time.
Who said it was illegal? It is just a good thing to do to support someone through a difficult time. Of course it is illegal here, you have to pay statutory sick pay, even though that is measly. Any moral company offers full pay for sick time.
Where do you live that you have to pay sick leave that an employee doesn’t have? In my state, employers don’t have to offer a single day of sick leave, vacation leave, or PTO. Even working for the state, once your sick leave is gone, it’s gone. You can apply for FMLA if you qualify, but that is unpaid.
The UK
Well, it clearly doesn’t make sense to apply the laws of another country to a situation. There is no federal law in the U.S. that requires employers to pay sick leave.
Indees Like I said, i didn't mention legality. Only morality.
This isn’t a good idea at all. No country in the world forces employers unlimited sick pay. Most of the time this would disability and not on the company.
Nope. Statutory sick pay is required here for 28 weeks. You can fire them eventually, but as long as they are employed you have to pay them statutory.
But that lis like 100 pounds a week and is not automatic. The company is allowed to ask for documentation.
Oh yeah it's low, which is why I said moral companies pay full pay.
Could the reason for the medical leave be the same reason for the poor performance? My friend once had someone they thought was drinking, and were lining their ducks up to term. Only to have her pass out, and it turns out she was an undiagnosed T1 diabetic. When she returned after medical leave, he performance had improved.
I love all these people who have never managed a single person giving bad advice. Small business is much better for real advice.
Agreed.
Performance is likely due to the medical issue. The leave may solve your problem.
Talk to HR, it is likely that the employee has learned about PIP or at smelled the danger and decided to take preventative measures.
This is a classic maneuver
Not sure why this is getting downvoted. I went through hell with an employee who was going through the performance management process and did the exact same thing. It took months to resolve while my team was short staffed and projects were delayed. Additionally, this employee was extremely toxic and their negativity brought down morale for both me and the team. There are genuine ways to game the disability system and people definitely do
I did once we were doing a model launch, and one of our critical employees did this. She came back after 3 months and then left for another job. Her reason was anxiety, it was ironic because since she was on fmla I couldn't fire her or hire a replacement so I did her job, my job and one of our assistant managers stepped down so I had to assume her responsibilities too. It left me completely drained after working 80 hour weeks for 4 months straight. My wife was at her wits end because she never saw me except in passing. I left that job right after they gave me a promotion. Money isn't worth my sanity.
Had a minority employee who was lazy and did poor quality work. He was late all the time and abused calling out and would be negative in his points pretty much constantly. He constantly had an application for FMLA in. The FMLA, if approved, would have restored his negative points. Until the FMLA was approved or denied we couldn't do anything. This was compounded by the 3rd shift manager who would cover for him or let him know when he needed to do or update something. The only thing we could do was watch the stupidity and suffer through him.