Employee Non-Response

Steven Cesare, Ph.D.

A business owner from Virginia called me the other day to talk about an employee who frequently complained about anxiety, stress, and panic attacks due to events in her personal life. Parenthetically, as an FYI, these types of issues are becoming increasingly common; be prepared and be ready.

Throughout our dialogue, it became extremely clear that the business owner had addressed all the fundamentals necessitated by this event. She verified the employee signed the Employee Handbook, informed her EPLI vendor of this issue and potential implications, and engaged the employee in the four-step Interactive Process advocated by the Department of Labor to maintain compliance with the Americans with Disabilities Act (ADA). Confidentiality had been maintained. Extensive documentation was in place.

Nice job!

Despite the business owner’s commendable actions and best intentions, the employee began to miss work periodically, eventuating in complete absence.

In a normal situation, the employee would reflexively be judged as resigning his/her position due to job abandonment which in most Employee Handbooks is defined as three consecutive workdays of no-call/no-show.

Due to the litigious circumstances inherent with the ADA, this case was not normal.

With that pretext in mind, I advised the business owner to not proceed with the normal job abandonment protocol. Rather, I suggested she implement a three-step communication process serving multiple means: Demonstrating a sincere effort to reach the estranged employee and to compile a “good faith” effort to not discriminate against a disabled employee who may require supplementary effort beyond that afforded to non-disabled employees.

First, I urged the owner to call the employee’s last known telephone number, with a witness present, and leave a message on the employee’s voice-mail requesting that the employee communicate with the business owner as soon as possible. Naturally, I admonished the business owner to document every phone call to the disabled employee, substantiated by the call being made on the business owner’s monthly telephone bill.

Second, based on the passage of several days and non-response to the aforementioned telephone message(s), I recommended the owner send a text message and an e-mail message to the disabled employee’s last known telephone number and e-mail address. Documentation is axiomatic.

Next, after the passage of several more days, I instructed the business owner to send a formal letter to the disabled employee’s last known home address, via certified mail return receipt requested. This letter serves as summary documentation, restating the employee’s last day of work, the company’s no-call/no-show policy, the dates in which telephone calls, text messages, and e-mail messages were sent to the employee, and requesting a formal statement from the employee specifying her intentions to remain employed by the company, while giving the employee a three-day horizon to contact the company, or be classified as a resignation. While implied, please be reminded the EPLI vendor should be contacted throughout this process and be included as a “cc” on this final letter.

True to form, the business owner dutifully followed the tedious administrative process recommended above, all to no avail. The employee failed to respond at each step of the sequence.

That said, the owner, the EPLI vendor, and I all had confidence in the painstaking procedure, which granted us peace of mind going forward, in the event the disabled employee would have alleged discrimination.