Cancer and Layoffs

I am an HR Manager in a professional services firm and am currently planning for headcount reductions like so many of my colleagues today. As my functional leader and I have assessed our employee population, my leader identified a man who has a history of poor performance, but was recently diagnosed with cancer (did I mention that his wife also left him this year and took the kids with her? Bad year). The good news is that his doctor caught the cancer early and his chances of survival are good. In fact, he has a couple of months before he will even start treatment. I have persistently raised my concerns to my leader about taking this action now, but he is adamant about doing it asap.

I understand that the economic climate makes these kinds of tough decisions necessary and given his recent performance, as compared with the rest of the employee population, I do believe he should be on "the list" ultimately, but I question the timing of doing it now. With his recent diagnosis I thought we would be legally bound to see him through his current health crisis before delivering the news. However, I wrote to our general counsel to see if we had any legal obligaions and, if not, what the firm's policy is in situations like this. I was told that if he were currently on medical leave, we would wait for his return before letting him go. But since he is not medical leave, they said we should "treat him like anyone else" and that I was not to offer him anything more than the standard severance package (3 months).

His only hope is to begin treatment now so he can take medical leave before the ax falls, but for a number of reason the employee is in no rush to start treatment now (chief among those reasons being that he doesn't know he's about to get canned. This feels totally wrong. I am very concerned about the individual, but also concerned that he's going to turn around and slap us with a big fat law suit. And what jury isn't going to hear this story and side with the cancer survivor? I know you are not an employment law specialist, but what advice can you offer an HR Manager who wants to help this employee get safely through treatment without having the added stress of paying for COBRA and finding a new job, thereby keeping my firm's name from potentially ending up in the news with some very bad PR?

This is a rotten situation. Not that layoffs are ever pleasant, but this one is particularly rotten. I agree that it seems unnecessarily heartless to terminate someone in this situation. However, if you must cut heads (and I assume you must), then it is also a problem to keep a low performer and fire a high (higher?) performing person just because the low performer is having personal problems.

That, to me, seems like, "we must keep all the single mothers and terminate the married men!" The company has to do what is right for the company. This also should mean we do what is right for our employees, because good employees make the company operate smoothly and successfully.

You are right to be concerned about PR, but it is far more likely that a case like this won't hit the papers (so many layoff stories to choose from!), but will be the hot topic around your remaining employees. That kills morale as well. (As if layoffs don't cause their own morale problems.)

Here is my suggestion, based on the assumption that this employee is aware of his failings as an employee. (If his manager has been too wimpy to address his performance issues, then you've got extra troubles.)

Have his manager sit down with him, explain that because of the recent economic downturn, it's highly likely that there will be layoffs. If there are layoffs his name is likely to be on the list. Therefore, he might want to prepare for such a possibility. Let the manager tell him, "I'm aware of your health situation and wanted to let you know that if, by some chance, you are on medical disability, we would not terminate you until your doctor clears you for work or the period of disability ends. At that time, you would be eligible for the severance package."

This way, the guy knows it is coming and can opt for disability right now. (If that's a possibility with his doctor.) The powers that be, at your company, may or may not approve. But, trust me, firing him now is not going to be much of a cost savings anyway. He needs the cancer treatment. COBRA is going to be cheaper than paying cash, so he'll undoubtedly take COBRA. His salary, while on disability, should be covered by your short term disability. Granted, if you are self insured this can be expensive. But, you also don't show bad will to the rest of your workforce.

In normal situations, I'm not a fan of advance notice of a layoff. Why? Because the affected person can't get on with his life and he comes to work crabby and his co-workers who weren't "selected" don't know how to relate and everybody is uncomfortable. Blech. But, this seems to be a situation where some advance notice may solve a whole host of problems.

It's not, by the way, illegal to fire a sick person. You just can't fire them because they are sick. Which goes back to the previous documentation. Good luck!