Good morning Jerry,
Thank you for the additional information.
As the employee has not been there long enough to qualify for leave under the FMLA, and because with less than 50 employees you are not subject to the FMLA, you are not obligated to hold his position when he needs time off based on the FMLA.
However, there is a good chance that his disease is serious enough that it qualifies him as disabled under the ADA regulations.
Under the ADA guidelines, a person is considered disabled if they have a physical or mental impairment that substantially limits one or more of the major life activities. Recently, some new sections were added to the ADA regulations which provide even greater protections for the employee.One such section, 1630.2(j)(1)(iii) holds that the issue of “substantially limited” in a major life activity “should not demand extensive analysis,” and goes on to hold that comparing an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population “usually will not require scientific, medical or statistical analysis.”
Presuming that his condition is serious enough to qualify him under the ADA, then he has the right to ask you, as the employer for reasonable accommodations based on his disability. Reasonable however does not mean that an employee may be out of work for long stretches of time--and missing 7 days in one month is not going to be considered reasonable either, unless it is easy for you to pick of the slack when he is out.
Because you are walking a fine line here---and the sole reason you articulate for wanting to terminate him immediately is his regular absence from the business----I would not suggest simply letting him go.
I think that you need to consider sitting down with him and explaining that you understand he has health problems and ask about accommodations he might need. But you may also make it clear that repeated absences cannot be allowed. Better yet, because of the potential volatility of this situation, you would be best served by having your corporate attorney sit down with you and discuss how you should handle this employee going forward.
Here is a link to a good article on the pitfalls in dealing with absences of employees who are presumably covered by the protections of the ADA:
For the time being, it would likely be a poor idea to terminate this employee based on their most recent string of absences from work though.
You may reply back to me using the Continue the Conversation or Reply to Expert
link if you need any clarification of my answer.
Please remember to rate my service to you when our communication is completed, so that I will be compensated for my time in providing you with the information you requested. I will be happy to continue further, and to assist you until I am able to address your concerns, to your satisfaction.
I wish you the best in 2013,