Question:

Hi Jennifer, 

I have an employee who is not working out, but she is also on an accommodation.   I really need to terminate.  How do we proceed? 

Thanks. 
Dr. L

Answer:

This is a very legitimate question I field often.  You are correct; it most certainly is not enough nowadays to terminate an employee on accommodation with just your perspective the job isn’t being performed.  No matter the size of your practice, documentation and qualitative analysis of some measure is absolutely not just recommended, but must be viewed as required (to avoid / combat exposure).   

Here, we have an employee who has already sought “protected status” and accommodation, which, seemingly you have provided.   It is now imperative you document what has changed, how the required role is not being performed in satisfactory manner.  Documentation alone will not prevent a potential claim to a government agency or lawsuit, but it will absolutely aid in resolution.   

Reminder: being prepared is essential, having insurance is best practice.  Check you have EPLI in place BEFORE terminating.   

Let’s discuss how best to paper in advance.   Adages live for a reason - an ounce of prevention is worth a pound of cure, here especially.