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  1. #1
    Join Date
    Sep 2005
    Location
    Chicago
    Posts
    58

    Default Possible ADA Issue In Illinois

    Facts: We have had good reason to suspect theft by an employee. We called a meeting to discuss with him. He was a no show, later emailing to let us know of his HIV positive status and he's been sick and must now undergo treatment. He is under 1,250 hours so he doesn't qualify for FMLA, and I understand this condition is covered by the ADA. We still have the issue of possible theft. He has called off work since that email last week and continues to refer to his 'condition'.

    What obligations do we have at this time as the employer? I still need to address the theft issue.

    Thank you.

  2. #2
    Join Date
    Feb 2008
    Posts
    1,179

    Default Re: Possible ADA Issue In Illinois

    What is your normal policy for when you suspect theft? What is your policy for unexcused absences? How would you have dealt with an employee who was a no show for this type of meeting had you not known he had HIV? I would follow those policies.

    ADA doesn't protect him from having to follow laws/employer policies. It does require reasonable accommodation. But long absences from work are not always viewed as reasonable....the main point of ADA is to accommodate SO THE EMPLOYEE CAN WORK.

    And with ADA, the employee has to interact with the employer not only to come up with reasonable accommodations but to give documentation of the disability. If they do not, then they fail on their side of the burden.

    You do need to make sure theft charge is not pre-textual....what documentation do you have?

  3. #3
    Join Date
    Feb 2008
    Posts
    578

    Default Re: Possible ADA Issue In Illinois

    1) I wouldn't do anything without first involving your company's lawyer and insurance carrier.
    2) It will obviously be beneficial - actually probably a CYA necessity - that you are able to document the suspicion of theft and the notification of the meeting (prior to your knowledge of his medical status?), before you take any employment action.
    3) Obviously you don't want to be paying him salary/benefits or even keeping him on the payroll if he is a thief, and just because he has HIV doesn't mean that he is protected from being fired for cause or even "at will". But neither do you want to wind up in court on a discrimination/retaliation action. Even if you aren't found liable for any damages under an ADA violation claim the litigation exposure could be substantial. You may also need to talk with your insurance carrier regarding this.

  4. #4
    Join Date
    Dec 2005
    Posts
    200

    Default Re: Possible ADA Issue In Illinois

    I suggest treating the matters separately.

    I assume that you weren't aware of the employee's HIV status until he notified you last week. If true, based on the chronology of events, his condition couldn't have affected your decision to call him in for a meeting for the suspected theft, because you weren't aware of it. However, now that you are aware of it, you should follow EEOC's guidance on engaging in the interactive process for responding when an employee notifies his employer that he is a qualified individual with a disability (QUID) that is covered by the ADA and that disability requires some accommodation. See EEOC's website at http://www.eeoc.gov/ada/adahandbook.html#reasonable. Among other things, you can ask him to submit the necessary medical information to document his medical condition and the accommodation he needs for his condition. You can ask if his current sickness and his treatment will affect his ability to work, how, and an estimate of how long.

    You should also consider his FMLA rights if he's eligible for FMLA.

    I agree that with regard to the thief issue, you follow your existing procedures. What is your policy for handling potential disciplinary matters when employees are on leave? Do you continue the communication by post or email, or do you suspend it until the employee returns from leave?

  5. #5
    Join Date
    Dec 2007
    Location
    Ohio
    Posts
    2,006

    Default Re: Possible ADA Issue In Illinois

    I suspect that he is using his HIV status as a sympathy ploy so you don't file criminal charges. Why do you need to feel that you have to discuss it? If you have proof, let him explain it to the judge.

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