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Marsha411JD
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17038
Experience:  Licensed Attorney with 28 yrs. exp in Employment Law
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IF you have an employee who has a hard time getting to work

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IF you have an employee who has a hard time getting to work on time, IE late 4 days in a 2 week time frame. Has been written up for that on more than 3 occasions as well as having been sent home from work for being unfit for duty IE sleeping on his / her feet. Then the employee checked themselves into a rehab program, returned to work after 2 weeks. Can the employer at that time request that the employee sign a 180 day probationary letter? In the state of ALabama!
Submitted: 9 months ago.
Category: Employment Law
Expert:  Marsha411JD replied 9 months ago.
Hello,

Thank you for the information and your question. Alabama is an employment "at will" state. That means that you, and the employee, can terminate the employment arrangement for any, or no, reason and with no notice or warning unless the termination would violate an employment contract, company policy or an employment discrimination law.

I assume that this is not a contractual job. Therefore the only two issues standing in your way of immediate termination for the issues you describe are your policies and discrimination laws. In other words, there is no law in Alabama that ever has stated you must give warnings prior to termination. However, by doing so you have created an implied contract/policy for your employees that they can use to say they are entitled to warnings prior to termination. In that case, you must follow your written policy or your regular routine when it comes to the number of warnings that are given prior to termination and be consistent. If you give all employees who have received warnings, 180 probationary letter, then the same must be done with this employee. However, unless your policies give them that right, you should reconsider creating it because then you have completely created a contractual relationship where you cannot terminate an employee "at will."

In this case, I understand that this employee went to rehab, which might or might not qualify them under the ADA against discrimination. However, if an employee commits misconduct, no amount of protection under discrimination laws would require that an employer retain them, as long as the employer is consistent. That is the way in which employers get into legal trouble--inconsistency.

So, I don't know what your policies say, but unless you have never terminated an employee for cause or give all employees 180 probationary periods, you should think twice about giving one to this employee. If they violate clear workplace rules again, you can terminate them. They don't have to be continually warned.

What I might suggest, is that you sit down with a local employment law firm and have them go over your employee policies with you and draft up a simple policy manual or handbook that clearly states that employment is "at will" and no one is entitled to stepped discipline, warnings or probation. That is up to you, but it will give you more leeway and running your company.

Please let me know if you have any specific follow up questions. I would be glad to assist you further if I can.
Expert:  Marsha411JD replied 9 months ago.
I see that you had a follow up question. In order to ask a follow up you merely need to click the "reply to Expert" button on this question thread. Otherwise, you will have more than one question opened and will be charged for more than one.

In any event, if the employee refuses to sign a warning, or anything else you ask them to, you can terminate them for that. If they really would say "yes, I am quitting" then there is no legal issue, they quit and you didn't terminate them.
Marsha411JD, Lawyer
Category: Employment Law
Satisfied Customers: 17038
Experience: Licensed Attorney with 28 yrs. exp in Employment Law
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