Cancer and Layoffs

by Evil HR Lady on February 4, 2009

I am an HR Manager in a professional services firm and am currently planning for headcount reductions like so many of my colleagues today. As my functional leader and I have assessed our employee population, my leader identified a man who has a history of poor performance, but was recently diagnosed with cancer (did I mention that his wife also left him this year and took the kids with her? Bad year). The good news is that his doctor caught the cancer early and his chances of survival are good. In fact, he has a couple of months before he will even start treatment. I have persistently raised my concerns to my leader about taking this action now, but he is adamant about doing it asap.

I understand that the economic climate makes these kinds of tough decisions necessary and given his recent performance, as compared with the rest of the employee population, I do believe he should be on “the list” ultimately, but I question the timing of doing it now. With his recent diagnosis I thought we would be legally bound to see him through his current health crisis before delivering the news. However, I wrote to our general counsel to see if we had any legal obligaions and, if not, what the firm’s policy is in situations like this. I was told that if he were currently on medical leave, we would wait for his return before letting him go. But since he is not medical leave, they said we should “treat him like anyone else” and that I was not to offer him anything more than the standard severance package (3 months).

His only hope is to begin treatment now so he can take medical leave before the ax falls, but for a number of reason the employee is in no rush to start treatment now (chief among those reasons being that he doesn’t know he’s about to get canned. This feels totally wrong. I am very concerned about the individual, but also concerned that he’s going to turn around and slap us with a big fat law suit. And what jury isn’t going to hear this story and side with the cancer survivor? I know you are not an employment law specialist, but what advice can you offer an HR Manager who wants to help this employee get safely through treatment without having the added stress of paying for COBRA and finding a new job, thereby keeping my firm’s name from potentially ending up in the news with some very bad PR?

This is a rotten situation. Not that layoffs are ever pleasant, but this one is particularly rotten. I agree that it seems unnecessarily heartless to terminate someone in this situation. However, if you must cut heads (and I assume you must), then it is also a problem to keep a low performer and fire a high (higher?) performing person just because the low performer is having personal problems.

That, to me, seems like, “we must keep all the single mothers and terminate the married men!” The company has to do what is right for the company. This also should mean we do what is right for our employees, because good employees make the company operate smoothly and successfully.

You are right to be concerned about PR, but it is far more likely that a case like this won’t hit the papers (so many layoff stories to choose from!), but will be the hot topic around your remaining employees. That kills morale as well. (As if layoffs don’t cause their own morale problems.)

Here is my suggestion, based on the assumption that this employee is aware of his failings as an employee. (If his manager has been too wimpy to address his performance issues, then you’ve got extra troubles.)

Have his manager sit down with him, explain that because of the recent economic downturn, it’s highly likely that there will be layoffs. If there are layoffs his name is likely to be on the list. Therefore, he might want to prepare for such a possibility. Let the manager tell him, “I’m aware of your health situation and wanted to let you know that if, by some chance, you are on medical disability, we would not terminate you until your doctor clears you for work or the period of disability ends. At that time, you would be eligible for the severance package.”

This way, the guy knows it is coming and can opt for disability right now. (If that’s a possibility with his doctor.) The powers that be, at your company, may or may not approve. But, trust me, firing him now is not going to be much of a cost savings anyway. He needs the cancer treatment. COBRA is going to be cheaper than paying cash, so he’ll undoubtedly take COBRA. His salary, while on disability, should be covered by your short term disability. Granted, if you are self insured this can be expensive. But, you also don’t show bad will to the rest of your workforce.

In normal situations, I’m not a fan of advance notice of a layoff. Why? Because the affected person can’t get on with his life and he comes to work crabby and his co-workers who weren’t “selected” don’t know how to relate and everybody is uncomfortable. Blech. But, this seems to be a situation where some advance notice may solve a whole host of problems.

It’s not, by the way, illegal to fire a sick person. You just can’t fire them because they are sick. Which goes back to the previous documentation. Good luck!

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{ 37 comments… read them below or add one }

Rachel - I Hate HR February 4, 2009 at 11:53 pm

If you looked closely enough into the lives of everyone you lay off you would find reasons to feel bad.

Stop focusing on the trees and look at the forest. By cutting this one you are saving many others.

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Anonymous February 5, 2009 at 3:50 am

Where is the “human” in “human resources”? How sad it is when HR doesn’t have the ability to look beyond a rule book. Think creatively.

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Sadistic Manager February 5, 2009 at 6:00 am

@ Rachel – too true. Firing is emotionally draining enough, without considering the eight children and jobless spouse whose unemployment has run out. Not that I’ve ever seen that situation, even if it was(n’t) my first time firing anyone.

@ Anonymous – got a challenge for you: share that creative thinking if you’re going to criticize so harshly. I’m with the Evil One on this one. What happens if this man stays employed and someone whose performance has been documented as far superior gets cut? Lawsuit waiting to happen.

I’m sure no one is without sympathy for the cancer patient, but if the business is in dire enough straits that people have to be let go, they can’t really justify excluding an underperforming employee from the cut if they have rock stars on staff.

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Anonymous February 5, 2009 at 7:47 am

If the company “had” rock stars, it wouldn’t be in such dire straits.

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Inside the Philosophy Factory February 5, 2009 at 9:07 am

As someone who has just finished treatment for breast cancer (first check-up tomorrow!), something cancer patients deal with all the time is the loss of a job. They are generally fired for cause, because they quickly use up their sick days and then have excessive absences as they continue treatment.

I vividly recall one woman on the same basic chemo regime as me — but for the second time — who would schedule her chemo for as early in the day as possible, so she could get to her 3-11 shift so as not to lose her job with the benefits.

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Anonymous February 5, 2009 at 2:25 pm

These are unusual times … and we in HR are tasked with conducting RIF and layoffs, some for the first time. The key here is “a history of poor performance”. While I do have a heart … I think giving this one individual advance notice is not the right choice (sorry EHRL…and I normally do love your advice).

I think if you really looked at your list – many may have circumstances that are unusual (getting a divorce, having a baby, buying a car etc.) Everyone in your organization should have the same notice. Hopefully the management has informed the employees all along that expenses are being looked at, suggestions for cost savings gathered etc. Without saying a reduction in force is going to happen … again during these unusual times…it shouldn’t be a surprise. (didn’t EHRL recently post about polishing your resume, paying your bills etc.)

Your organization can choose to eliminate low performers or choose to cut employees that are happy, healthy, high performers and can just really take the news of losing their job much better. (ok sarcastic ring tone here)

I’m more interested in what you choose to do for the second round of cuts …and if you are going to “accommodate” other low performers. It’s a tough call – and I am sympathetic.

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Anonymous February 5, 2009 at 2:26 pm

So will the manager be on the list too, I mean he let the underperformance go unaddressed for so long?

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Jana D. September 4, 2012 at 5:47 pm

good point.

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jaded hr rep February 5, 2009 at 2:31 pm

If this person is a low performer, can you also trust this person with confidentiality? If a manager had a meeting like this with me – it’s an obvious signal that layoffs are being planned. Now I wouldn’t blab, but would the low performer “get it” or would the rumor mill start churning double time at pending layoffs to come once he leaves the room?

This is a sticky situation with no neat answers, but I would give strong consideration to the above too, before doing the “humane” thing.

I also agree that if you looked into the other lives, how many unfortunate employees would you find? Some people are comfortable talking about illness openly, knowing the audience is usually sympathetic, but do we know that other employees don’t have just as important obligations where FMLA isn’t even an option and who would be in dire straights if a job is lost?

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Anonymous February 5, 2009 at 3:03 pm

Like others have mentioned, nearly everyone has a story in their personal life that makes it hard to cut their job. It is discrimination when you look at anything other than job-related factors when making this type of decision. If I was the higher performing employee who got cut, and I fell under any of the other protected classes, I’d sue if I found out about this situation.

We in HR all do have hearts, and we feel terrible when anyone has to be laid off. But just because someone is going through a tough patch in their personal life doesn’t mean they should be treated any differently than anyone else in the company.

I usually agree with EHRL’s advice, but I completely disagree this time. Don’t give that employee advance notice unless everyone gets advance notice.

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HR Godess February 5, 2009 at 3:33 pm

I have to say that I disagree with EHRL this time as well. The key to this whole story is that the guy has a performance issue and if he hadn’t had that issue, he may not be on the list of layoffs. That’s his fault. The cancer is unfortunate and I’m sure it is very difficult for the HR rep to cut him because she/he appears to be very compassionate. And having had to do layoffs many times in my career, there are always circumstances that make it more difficult and certainly something like cancer is the worst.

The bottom line is that he isn’t a good performer. It’s unfortunate but he put himself in that position.

None of this makes it easier for the HR person and you will probably have many sleepless nights. I’m not sure anything anyone says will make this easier for you. You’ll have to find a way to work through it. And I can tell you that it sucks, every time you have to do layoffs so it never gets easier.

The best advice I ever got was to take the personalities out of it when the decision is being made. Make the decision then prepare yourself for the problems and personalities. When I do that, I at least can stand behind my decision every time because it’s what is right for the company. Good luck.

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Anonymous February 5, 2009 at 7:05 pm

He’s getting severance, he’ll have COBRA so what’s the problem? It still feels bad.

How long has this guy been a poor performer? Is his performance related to his illness / personal problems?

I agree with the “evil” one that giving him some advance warning is the best course. It’s great PR for the other employees that their company won’t just hang them out to dry when they’re in dire straits. More importantly if he filed a lawsuit a jury is very VERY likely to side with him if he can show that HR new about his illness and decided to fire him. This kind of situation plays out much worse in a courtroom for the employer than does race discrimination or sexual harassment because everyone knows someone who’s been sick.

The other thing is that by not taking his time off right now, this employee is likely postponing treatment in a misguided effort to keep a job that he is likely to lose soon. Give the poor guy a heads up.

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Infamous HR Guy February 5, 2009 at 7:45 pm

“Where’s the “human” in human resources” – interesting statement.

Sadly, in field HR by the time we learn about lay-offs all the big wigs have crunched the numbers and made decisions based upon savings to the company. I recently moved from a company that has been cutting jobs since January 2007.

I have my lay-off story that I bet could be near the top of “You did what?” and yes to this day I feel horrible. It dealt with lack of communication from multiple sources.

Managers always tell me how they couldn’t sleep the night before (as if I don’t haven’t had insomnia for two weeks or more knowing that was about to happen) but I remind them that they must take the feeling they have and multiply it by 100 times to even start to feel like the employee who is being let go is feeling.

It’s true both myself and the manager have paychecks still accruing the next day. But to say HR isn’t human just isn’t fair.

There is so much planning, discussions and research that goes into letting people go that normal people have no clue about.

Either way I sincerely hope before you cast stones at our glass houses, that you ask questions of us before making judgments.

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HR Godess February 5, 2009 at 8:33 pm

To the last anonymous post, let’s say HR decides to tell this guy what’s going to happen so he can go on disability. The “PR” you’re talking about is only good if the company can guarantee that it will duplicate this to any other employee in a dire situation. If not, it’s called discrimination and that will cost them a lawsuit. It’s unreasonable to say that in every future situation, the company can make the same decisions.

And thanks to the Infamous HR Guy. People have no idea how hard these decisions are, how much goes into making them and how difficult it is to deliver the news (and how much sleep we lose)!!

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Anonymous February 6, 2009 at 4:02 pm

I highly recommend the book Dropping Almonds by Bach Anon to Evil HR Lady. The book is written from the perspective of an executive and his dealings over a 2 1/2 year period.

With that said, her advice is spot on. You have to look at performance first and everything else is second. If the medical condition affects the job performance to the point of noticeable decline, the employee should speak with their doctor and employer about short term disability options to get well. If their job performance is poor to begin with, you can’t lean on a medical condition to keep them…welcome to reverse descrimination.

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Olivia February 6, 2009 at 4:06 pm

As much as I hate to say this, I wouldn’t give the guy notice either. While you happen to know his issues, you probably don’t know all the other issues the other people on the block are having, so the only fair, consistent thing to do is to treat the entire group the same.

By all means, if you haven’t already, make sure you check that his performance issues weren’t undocumented FLMA type things, where the manager just mishandled communicating with HR. Document very carefully the selection criteria for the layoffs. While this completely hurts from a personal standpoint, so do a lot of HR decisions, and as so well stated by HR Goddess, once you take the personalities out of things, the reasons and rationales become very clear, and legally defensible.

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Olivia February 6, 2009 at 4:16 pm

Oh, one more thing to add on the more creative and human side. “someone” could theoretically send the guy an annonymous letter suggesting that taking time off now might be in his best interest. Will hurt you in rumors around the office, and could theoretically be used as proof (if tied back to HR) a) That company knew about his condition and was concerned about it b) that he got special treatment. (Which is why I would advise NOT to tell him in advance, but there you go.)

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Just another HR lady... February 6, 2009 at 4:38 pm

This is a very sad situation and I sympathize with the person trying to deal with it, but I’m sorry I have to disagree with EHRL this time around.

If you have properly completed your layoff matrix (assuming your matrix contains no discriminatory factors), and this person ends up on the list, you have to include them in the downsizing and give the same notice to them as you do to everyone else. If this person’s doctor has not yet put them off of work, then there is a reason, they probably don’t yet qualify.

Giving advance notice to only one person on the list or taking them off the list because of a personal reason, would defeat the purpose of doing any documentation to determine who would be included in the downsizing. Do you have to go through the list and decide who “deserves” advance notice or to be taken off the list because of a personal issue? Who makes the decision as to which personal issue is “bad enough” to save their job? You see someone about to purchase a new home, do you whisper in their ear that their job will be gone next week? You know that an employee’s marriage is ending and that they will soon be a single-income earner, do you take them off the list? You know someone has a medical issue, do you break confidentiality and tell them that the layoffs are going to happen so they can run and apply for disability? I see a whole lot of ethical (and legal) dilemmas for HR/Managers if you start picking and choosing employees randomly based on nothing more than personal issues. I certainly would not want that task. Doing a layoff matrix removes this type of judgement call, and shows that the company was conducting the downsizing in a fair and equitable manner.

As someone who has managed downsizing from small groups of 10 and up to 600 employees, while you certainly feel for people, you also realize that if you have to do layoffs, you have to go with the procedure that is the fairest to everyone. And yes, I do include managers and HR in all layoff matrixes, even managers and HR are not immune to cutbacks.

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The Engineer February 7, 2009 at 7:06 pm

Hey folks, we are running a business here not a charity. Cutting the dead wood is easy (ignoring the personal effects isn’t), but wait until the next round (or two) when you start selecting the folks in the “satisfactory performance” group.

For those of you “at the table;” suggest that management keep the communication lines very open about the financial situation of the organization. Best way to help the employees prepare is to keep them in the know.

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Evil HR Dictator February 7, 2009 at 8:19 pm

“Where is the ‘human’ in ‘human resources’?”

Thinking about the whole work force at the company.

His personal situation is tragic, and we do indeed feel badly for him and for his family. But we have to take the interests of the entire company into account. The company is trying to survive and the best performers need to be kept. If the company doesn’t survive, everyone loses their jobs. So then does the HR Manager say, “Sorry, folks. We could have made a decision to make the company more competitive, but instead we chose to keep a substandard performer on board because we felt sorry for him”?

There have been folks in HR, normally early in their tenures, who have tried to make decisions based on compassion for individual cases instead of basing them on consistency and the best interests of the company as a whole. Usually, they regret it.

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Anonymous February 7, 2009 at 8:39 pm

As important as it is that we all perform our jobs to the fullest (hire, fire, train) — we are also human beings. While this person would eventually get fired, doing something to help with the medical leave or ease the pain of another big incident is what being a fellow human being is all about. Above our jobs (jobs can come and go), we are people who can lend a helping hand if we have the power to. Hiding behind the company rules or job description to execute something we internally know is morally wrong – is—well—morally wrong! And that is what has filtered into our economy (corporate workforce) and well, look at the results.

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HR is a waste February 9, 2009 at 2:35 am

head reduction lol you hr people and your way of making things sound pleasant, why not just have the guts to say fire people? Also why doesn’t HR ever do “head reduction” in it’s own department. It seems HR never gets hit in a recession.

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Tim February 9, 2009 at 2:38 am

Watch the documentary ‘the corporation’ to find out how this sociopath known as a corporation treats human beings (even worse is the henchmen that do their bidding in HR). We have truly failed as a society when we have chosen a paycheck over a human.

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Anonymous February 9, 2009 at 4:53 pm

If companies decided who to hire/fire based on personal circumstances, well businesses wouldn’t be profitable since no one would get fired and you’d never get a strong workforce. This scenario is a lot worse than keeping around people because it’s the nice thing to do, although it may seem to be a harsher approach since you sometimes need to cut a few weak links for the greater good.

Poor performers hurt everyone at a business, from the top to the bottom. Although it may seem “mean” and we choose “paychecks over humans”, it’s the necessary evil of being in business. If you want a hug and some nice words, call your mother. Bottom line: businesses exist to be profitable. Sometimes in that quest you have to hurt some folks, but if a few people get hurt to keep everyone else employed, it’s worth it.

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Anonymous February 9, 2009 at 9:17 pm

anon let’s see if you feel the same way when your kids get cancer and fired. Tell them if they want a hug to call their mom.

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Anonymous February 9, 2009 at 9:50 pm

I’d suggest rather than giving this one person a heads-up, you could send out a company-wide FAQ-type document which includes information about what kinds of leaves will and will not make a person more vulnerable to layoffs and other such measures. That gets the information to the person you’re concerned about and also gets it to anyone else who may be in a similar situation that you don’t happen to know about.

Done right, it’ll also help to quell the rumor mill since it’ll contain official answers to the things rumors get started about. Ignoring the rules for one person can be discrimination, using one person’s situation to reflect on whether or not you have good rules and possibly changing them as a result can be a part of making better rules.

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Anonymous February 10, 2009 at 1:23 pm

Anon-there is a HUGE difference between being fired because you got cancer, and being fired because you’re not a good worker that happened to get cancer right around when layoffs are set to occur.

If you don’t perform well at work, you get fired. If that happens to one of my children, I wouldn’t feel so bad. You don’t do a good job, you deserve to get fired. Now if the person performance only declined during the time of the cancer diagnosis, my response would be different but clearly that’s not the case. The person is not contributing to the business and deserves to be let go. Business isn’t personal. It’s business. The world would be a lot better off if people realized it. The problem is that sometimes emotions get in the way.

The OP pretty clearly stated the person had been a poor performer and the cancer diagnosis was recent. It would be a different story if this person was a stellar employee prior to the cancer but had a couple bad months due to his illness.

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Land Job February 10, 2009 at 8:55 pm

I think with the recent economic downturn we are all going to see the good the bad and the ugly in many HR departments across the nation.

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John February 10, 2009 at 11:26 pm

THe Manager’s head rolls first, he wasn’t doing what he was paid to do, i.e. manage.

If he’s still around after the cull then the old boy network is still in operation where this mess started in the first place… at the top.

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mabel February 15, 2009 at 12:50 am

I’m wondering if the company had an EAP program available for this employee prior to his performance and personal issues hitting the skids. Had an EAP been made available, he may not be in the position he is in now.

At my previous company, I had an unusual amount of terminations due to restructuring and basically very poor management that was allowed to run their departments unfettered. I was hardcore and did it without blinking.

However, I really didn’t escape it unscathed. You do lose a piece of yourself knowing you took away the livelihood of another. Just a bit of advice.

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Holmes February 15, 2009 at 4:39 pm

I think this situation also outlines the problem of having health insurance tied to employment-at-will. It’s an absurd situation, one created by the government through subsidy I might add and makes this decision all the more difficult. Now his cancer is a pre-existing condition for another insurance company.

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llamaface February 16, 2009 at 3:48 am

HR lady! Where did you go? Did you get laid off?

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Anonymous March 24, 2009 at 6:13 am

It might not be legally wrong, but it is morally and ethically wrong.

This confirms my deeply held conviction that HR aren’t there for the employees – they are there only to increase profits for the company while patting employees on the head to reduce chances of law suits being filed.

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Dr Kathy health forum April 13, 2009 at 6:32 am

HR lady! Where did you go? Did you get laid off?

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Anonymous September 17, 2010 at 6:41 pm

I think that everyone who works in HR deserves cancer, seeing as they themselves are nothing more than a burden on the backs of anyone that actually does any work.

HR is in fact 'Workplace Cancer'.

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David December 30, 2010 at 3:23 pm

I just fell prey to an even more heinous example of callousness re: selection of "force-reduction" victims. My High-Tech company (now part of a multi-billion defense firm) just laid off 27 people from our local facility (right before the holidays). This includes me – a 58 year old multiple myeloma (cancer) patient now on a second chemo regimen after relapse – one of the oldest, most highly paid, and least healthy employees affected.

My manager had no problem with my need for Medical Leave for a few weeks last spring to collect stem cells (for eventual transplant), and has always cut me slack to provide flexibility regarding attendance issues due to treatments or illness. His boss, (the division VP) no doubt forced his hand in my case, and not the least inkling of warning was given.

The real problem for me is two-fold: 1) I am at an obvious disadvantage in seeking new work, despite a very strong resume and varied career. 2) I am not able to afford COBRA due to the very unusual nature of my company's health insurance coverage. To reduce premiums, the company pays in $7K of a $10K deductible (I must pay the remaining $3K); the insurance then kicks in. Under COBRA, I would have to pay the entire $10K myself – never mind the premiums! I suspect that my continuing "burden" on the company's health-care coverage (due to high claim values) may have something to do with the company's desire to get rid of me, but this is hard to prove.

Even so, I am exploring my options for a potential lawsuit against the company related to my medical situation. I would then have to decline the separation agreement and pass up their "generous" 3-week severance package!

Any comments or suggestions?!?

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julie brush October 12, 2013 at 5:29 pm

How do you hr people sleep at night? I am not being sarcastic,I am serious. Could it be,that you are singling him out as bad performance,and you are not self aware of this? That way,you could live sleep better at night knowing you did what you did. Put yourself in this guys shoes. I dare ya.

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