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What should you do when you have an employee who is sick a lot but is otherwise productive?

You do have a problem. This is a very sticky situation to be in, legally speaking, and you have got to watch your step.Take the case of Sylvia Wonasue.While working at University of Maryland Alumni Association, Sylvia learned she was pregnant. She had severe episodes of morning sickness, and landed in the hospital.Sylvia was treated and went home. There were no restrictions on her going back to work. But she felt sick as a dog. She was, remember, pregnant.Sylvia asked the boss to let her work from home a few days each week. Alternately perhaps she could use up her sick days. The boss, "Ms. Nias" in the court's decision, was hearing none of it. Court records indicate that Ms. Nias told Sylviathat she needed “[a] full-time, committed assistant”; “[s]omeone that can help [her] advance projects and respond in a timely manner to a number of issues”; and someone who will be in the office “from 8:30 to 5:00[] to provide the type of support [Ms. Nias] need[s].”Additionally, Ms. Nias “asked [Plaintiff] to think about whether or not she could commit herself fully to being [her] assistant” ...Fed up, a few days later, Sylvia quit. Then she filled out paperwork to sue the Alumni Association.Sue? you ask. For what?Sylvia took the position that not letting her work from home constituted an adverse employment action. Sylvia said she had to quit. Her doctor may not have seen it that way -- remember, he released her from the hospital with no restrictions -- but Sylvia was the one with the nausea and vomiting. The way Sylvia saw it, she could not commute to work.When an employer rejects an employee's request to work from home -- a pregnant employee who is throwing up all the time, struggling with physical complications -- there may indeed be a solid claim of retaliation. It depends on whether the employer's refusal to grant the work-from-home assignment sounds like criticism of the employee.In this case, the boss saw Sylvia's request as a sign that Sylvia was not committed to her job.The boss didn't just Sylvia she could not work from home. The boss said she needed to fully commit to her job. That could be interpreted as a threat.Was it?The Alumni Association's denial of Sylvia's request might very well discourage other employees from reporting discrimination or asking for disability accommodations.I would be careful if I were you. Find a specialist in this legal area and proceed with caution. Defending an ADA Retaliation lawsuit is very, very expensive. The words you use with an employee to discuss this matter can land you in extremely hot water. ##

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