On getting fired - after my accident
May 27, 2014 2:59 PM   Subscribe

My performance review was terrible and they almost fired me. I was given six months to shape up. But I was on disability for 50% of the work period and I don't want to get fired while I'm still in rehab. What to do?

Our review periods run Nov-Apr. In the middle of November my spouse had surgery and was in hospital for five days. At the end of November I was in an accident. I was in hospital for a week, took 2 months short term disability and did a gradual return to work afterwards, finally 100% full time on Apr 1. A week later my spouse had surgery again and was hospitalized for two more weeks. Not the finest six months of my life.

I work on a failing software project. Two of the leaders of the project were fired, one while I was in hospital and another just last week (when I wasn't fired). Team has trust issues, product is years late. I recommend terminating the project, which the CEO and others refuse to do because they think there is opportunity. I have technical expertise in the market (which I was hired for) and have reason to believe that they are wrong and they are wasting their money.

My performance review focused on being scattered, a lot of busy but little results, negativity, lack of vision, low quality results that were just enough/just in time, too many things on plate, etc. Part of me is like well no shit, work is not so great when nursing ill spouse, raising a school age kid and a 15 hr/week commitment to rehab all while struggling to do the activities of daily life (now I can walk and pick things up off the floor but I have problems sitting in a meeting for an hour without pain). My boss says I won't survive a third round, I need some quick wins to "rehab" my image. I suggested that he leaves rehab to the professionals and almost cried.

I don't know what to do. I need a new job but doing it while I'm in rehab sucks, I have my providers set up between home and work to make it most convenient to do the program and do my job. I can't cut my hours, my spouse is not working yet and rehab is expensive. I don't want to cut rehab, I want to get better.

I am isolated and getting more isolated from the people at work because I don't want to drag them through my aches and pains. I asked my boss to change my job to something I could do, failing that assign me to a proper team so that I am not stuck in my one-person department on the side of the main team struggling to assert a role that has never been performed successfully at our company. He listened intently but no dice so far. Then we did an activity where we ranked potential of employees (I am a manager). My boss discussed the difficultly of managing low performers that were over-promoted and wind up being asked to leave the company. I felt this was targeted at me, and I don't know how or if I am going to make it through this period when ostensibly I am supposed to have the opportunity to be successful.

What are my next steps here. I am withdrawing more from my colleagues, partly so I can just do my rehab and try to get some work done but also to avoid saying anything negative. This will compound my problem. I could look for a new job but don't really need a new project right now. My savings are dwindling while I pay for rehab. I really need some time off but also can't afford it and hesitate if I am going to get fired.

I have lawsuit pending for personal injury in accident, is my job just collateral damage? Should I be engaging my lawyer with the expectation I will be fired next time? Was my review discriminatory due to my health? I also have on file a letter from my doctor saying that I have an illness of a cognitive nature (read depression) from before the accident, the condition is exacerbated by stress and I was on modified work duty due to harassment in the workplace and my husband's surgery before my accident.

I am going to see a therapist because of all the body parts I rehabbed, my brain isn't one. I am getting new medications for my depression but all the medication alters my view of reality.

I don't know what else to do to untangle this. I have one friend that works there but I don't think he will really understand or has the time/inclination to listen. Also I can feel myself getting paranoid that he will undermine me if it turns out that it's in his best interest to do so (I was snippy to him one day after some terribly painful treatment).

Any suggestions for how to dig out are welcome.
posted by anonymous to Work & Money (12 answers total) 3 users marked this as a favorite
Start looking for a new job, I'm afraid.

They can't, technically, fire you for being injured and in rehab without inviting the possibility of a legal case, so they're giving you a bad review with warnings. Your employer is doing the cover-your-ass dance by establishing a record of poor performance.
posted by Thorzdad at 3:08 PM on May 27, 2014 [15 favorites]

This isn't looking good. You need a new job. They are locked and loaded, and as soon as you can be gone, you will be. They don't want you. They are documenting, they are reducing your role,

I know you have a thousand things going on, but if you get fired it is going to be ten times worse. I would proceed with the assumption you will be fired. Nothing you wrote makes me think they believe in you or your ability to turn it around.

You should be running, not walking to new opportunities.
posted by Aranquis at 3:17 PM on May 27, 2014 [1 favorite]

I would ABSOLUTELY talk to your lawyer about this situation. She or he will (obviously) need to know many more details than what you've provided here, but it looks to me like you'd potentially have an ADA (Americans with Disabilities Act) claim if you were fired.
posted by sevensnowflakes at 3:20 PM on May 27, 2014 [8 favorites]

Talk to your lawyer. Seriously. Tomorrow. Under no circumstances should you quit without talking to your lawyer.
posted by DarlingBri at 3:26 PM on May 27, 2014 [4 favorites]

This might sound like a crazy situation, but in your situation (and I was actually in almost exactly your situation) I got my doctor to help me put in for another stint of short term disability. Given that you can't sit through a one hour meeting without pain, I'm sure it's hard to sit (or stand) and code without pain. Use the system to give yourself the space to heal (and quietly get your resume sorted out while you're out).
posted by anastasiav at 3:37 PM on May 27, 2014 [1 favorite]

Absolutely talk to your lawyer, and your doctor. Depending on your jurisdiction, your employer could have a duty to accommodate you if your difficulties stem from a disability, and failing to do so can be very costly to them. (IANAL, but I do have some experience in labour relations.) Do you have any documentation of your request to be moved to a job you could handle?

Bottom line, as stated above, do not quit without getting legal advice first.
posted by rpfields at 3:42 PM on May 27, 2014 [1 favorite]

Document everything (write down dates and times of any verbal conversations about your performance or your future at the organization, note who was present for the conversation as well as the contents of it)


and get a lawyer who has previously worked on employment discrimination cases for disabled individuals, at least for an initial consultation if money is an issue and you cannot afford a retainer. You have a clear and demonstrable/documented disability and you want to keep doing your work/are still doing some of it, so you are covered by federal law, and probably also state and local laws depending on your location.
posted by zdravo at 4:02 PM on May 27, 2014 [1 favorite]


Don't quit, but as someone currently navigating the ADA/Employer terrain, I have to say I'm going to disagree that there's a basis for an ADA claim here (at least not yet). Your employer has written you up for poor performance/results - not your health. You haven't refuted that your performance/work has suffered, but excuse it by saying: "no shit, work is not so great when nursing ill spouse, raising a school age kid and a 15 hr/week commitment to rehab all while struggling to do the activities of daily life."

The thing is, yes, you've gotten a -really- bad hand the past several months, but NONE of those (other than your own documented disability) are your employers' problems and don't excuse you for poor performance (in the eyes of the law). As it pertains to ADA, an employer cannot fire you for being disabled or having a disability but you can still be fired for poor performance/failure to meet job standards - even if you can't meet those standards as a direct result of your employer refusing a request for an accommodation (that's not reasonable).

My situation is:

I'm disabled and want to bring a service dog to work. This is a reasonable accommodation per the ADA. I gathered my documentation and presented it to my employer with my request "I need a service dog for X reason". My employer took the documentation and had to determine if my request was reasonable. They tried to push back because there is a co-worker in my office who is deathly allergic to dogs. However, since there are many empty cubes/rooms empty in the building, either myself or my co-worker could be relocated. As such, the request was approved - my bringing a trained dog into work and being seated elsewhere doesn't impact/impede business. Had there been no empty cubes/rooms to relocate to, my employer COULD have legally refused my request as not being reasonable. Additionally, had my work suffered because my service dog request was refused, my employer COULD legally fire me too.

Also, FWIW, it sounds like you want to keep this job and that your employer is giving you a chance to fix the problem(s). So now is definitely the time for you to make reasonable requests of accommodation from your employer. Changing your job is not a "reasonable" request - you were hired to perform the job you perform because there was a business need - changing your job will negatively impact/impede business and so they can legally refuse. Putting you in another team is also not a "reasonable" request - there is clearly a business need for you to continue on this project, since by your own admittance, they refuse to pull the plug on it - they can legally refuse. BUT... Can't sit in meetings for an hour? Ask to dial/skype in or opt-out entirely (with notes sent to you via email) instead. Need to care for the spouse? Ask for greater flexibility in working from home/remotely. Need a specific schedule for rehab? Ask to switch some days around. Rehab on Monday? Ask to work Saturday or Sunday instead. The worst they can say is 'no', but even so, they have to justify that 'no' in the eyes of the law (ADA). So there is NO harm in asking for these accommodations - just make sure they're reasonable and won't impede/negatively effect business.
posted by stubbehtail at 4:52 PM on May 27, 2014 [5 favorites]

Anon, could you let us know through the mods where you are? Some of the answers are assuming U.S. laws, but I notice you said "in hospital" so we may need some clarification.
posted by dilettante at 5:58 PM on May 27, 2014 [1 favorite]

Honestly, sounds like you are going to get canned, and don't have a case.

Fair or not, from your bosses perspective, you are part of a project that is YEARS late, have been negative about the project for a long time, have not been performing, and don't get along with him or her (I.e. the rehab comment). All of those are legitimate reasons to fire you.

You are getting fired soon. Acknowledge that and prepare yourself.
posted by Spurious at 8:19 PM on May 27, 2014 [1 favorite]

The UK has a concept of constructive dismissal whereby an employer's actions can be tantamount to unfair dismissal. I am sure your employers are following a rule book to ensure they stay on the right side of the line for your local regulations but their execution might be flawed. Keep good records and talk to a lawyer if you can afford it.
posted by epo at 3:22 AM on May 28, 2014

Sounds like an incredibly toxic work environment that you would be better off without. Being expected to succeed without being given the tools necessary to succeed will make anyone crazy. I don't know if you're better off quitting or waiting for them to fire you (and they will fire you once they're comfortable with the paper trail they've created) but you're definitely better off without that job.
posted by mstokes650 at 8:28 AM on May 28, 2014

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