FMLA for a poor performer

I have an exempt employee on intermittant FLMA, due to a medical illness which has been confirmed by a doctor. The employee has not used all of the 12 weeks as of yet, but is getting there.

The employee is very sporadic in when he/she will work, some days the employee is fine and others not. She will work a week here and off one here and there. The doctor has cleared her to work 6 hours a day, but these six hours the work ethic is very poor, no past documentation. (I am the new HR Superintendent.)

To help you understand the situation a little better, this is a camp job, very remote, my exempt employees work 4 days on 3 off, they stay in camp 3 nights, normally work a 11-12 hour day. My worry is if I attempt to document poor work performance while the employee is under medical care, I am opening the door for the EEOC or ADA or NANA. I have offered reasonable accommodation by allowing a six hour work day. Again this is a camp job so working six hours leaves 18 hours in the employee dorm. I want to state that I cannot accommodate her 6 hours or better yet start documenting poor performance and terminate. But again I feel I am opening the door for the EEOC, ADA and NANA.

I want to say, off the bat, that I have no idea what NANA is. I hope it's not terribly important. I googled it and did not get any answers that seemed to fit the context, although I admit, I didn't look very hard.

You get, after all, what you pay for.

But, yes, you should document. You should be documenting on everyone with performance issues. If you are only documenting her issues, and not everyone elses, well then, you've got trouble with a capital T, which rhymes with P, which stands for pool. Which reminds me, I need to find out about swimming lessons for offspring number 1.

Anyway, your problem will probably resolve itself, if she's getting close to using all 12 weeks of FMLA. Intermittant FMLA can be extremely tricky, so I hope you have someone who is an expert advising you on this. Make sure that absences are approved under this FMLA, and not assigned to some other bucket.

Contrary to popular opinion, you can still fire someone for performance reasons, even if they are on FMLA. You can also eliminate their positions. But, you are right in that so doing opens you up for attack. It's generally guilty until proven innocent in these situations, so you have to be prepared to defend yourself.

You say you are new. Take this opportunity to do things the right way. Don't let this happen again. Frequently, people are afraid to deal with problems, because we all hope they will just go away. Problem employees rarely go away on their own accord. And, they don't get better unless they have reason to.

So, document for anyone with problems. Keep tabs on the FMLA. And, as for the six hour accommodation, since you've already approved that, I doubt that you'll be able to change that now.

Oh, and please don't just document. Keep the employee informed as to the expectations. She may be thinking, "I'm sick, therefore I don't need to do X." You may also not have a clear understanding of her limitations. Please keep an open dialogue.