Does My Employee Have a Medical Problem or Performance Problem?

Last Updated Jul 11, 2011 6:31 AM EDT

Dear Evil HR Lady,

I have an employee who drinks a LOT of water - probably well over a gallon a day while she's at work. This means that every 30 minutes she's either in the bathroom, or filling her water glass. I've recommended combining these into her break or bringing a jug to keep at her desk, but then she'll ask if that means I'm not going to allow her to go to the bathroom when she needs to.

Notes:

We're a health oriented company, so telling an employee they can't drink as much water as they want kind of goes against our wellness ideals.

This person is struggling to get her work done and has a hard time focusing on her tasks, and I believe that the constant water/bathroom breaks have become an excuse to get away from her desk.

This person is also pregnant, but the water issue has been going on for months before she found out about the baby. It's just gotten worse, because she's now three months along and using that as another excuse for her constant bathroom breaks since the day after she took the test. It could be legitimate as I've never been pregnant, but the other moms in my department have clearly stated that they didn't experience the bladder pressure until much later in their pregnancies. Yes, the rest of my team is noticing and commenting. But I'm not a doctor so I can't diagnose this as a pregnancy-related symptom.

We're a phone based department, so coverage is an issue.

I've been addressing the performance issues with her, but am afraid that if it gets to the point where we let her go, she'll come back with some type of wild discrimination issue over not being able to go to the bathroom/drink water. I wouldn't be surprised if she tried a pregnancy discrimination suit, though I have had other pregnant women in the department in the past where we were able to work out very successful plans to accommodate them reasonably - but they were still performing at a high level. I don't want to go to our HR department without a good idea of what to do as they tend to be ineffective.

I have asked if there is a medical reason why she needs so much water. She says no, that she just likes water.

What would you advise? Am I missing something here? I'm stumped! 

I don't think you're missing anything. In fact, I think you've summed up your problem quite well.

This woman may not realize that she uses the water/bathroom breaks as a way to get away from her job. She probably has convinced herself that she just likes water and of course she needs to get up, as she's drunk all that water. She's not really a slacker, she's a hard worker, but she just needs to pee really badly.

This, of course would be a lie. She is a slacker or she hates the job or she's incapable of sitting at a desk and should get a job that requires walking around, rather than talking on the phone. (Or she really does have a medical issue, but managers and HR should both avoid making medical diagnoses, especially over the internet.)

You're right that any punishment you throw at her could result in her claiming pregnancy discrimination. Fortunately for you, you started to address her performance issues before she got pregnant. If you hadn't, you'd be even more vulnerable.

Being away from her desk every half hour is entirely unreasonable, especially if there is no medical reason to do so, which she has says there is not. (As for increased need to pee while pregnant, it actually can start in the first trimester.) However, because of the pregnancy you can guarantee that if you say, "You can only have one bathroom break, for no more than 3 minutes, per hour" that she'll bring in a note from her doctor stating, "Due to Karen's pregnancy, she needs to be able to use the bathroom whenever she wants to," and if you don't follow that it will be further proof of how mean and nasty you are, you horrible discriminator.

So, let's keep this to a performance issue. Here's the dialogue:
You: Karen, you're fielding 15% fewer phone call than what's expected. I've noticed that you have a hard time concentrating when you are at your desk, and you are having difficulty completing tasks. What can we do to change that?

Karen: It's just because I'm pregnant! I have to go to the bathroom because I'm pregnant!

You: Unfortunately, this problem started long before you got pregnant, so I don't think it's the actual problem. When you are at your desk, you have difficulty completing tasks and concentrating. Unless we can solve these problems, I'm going to have to put you on a performance improvement plan.

Karen: I like to drink water! I need to drink water, I'm pregnant!

You: I'm not talking about your bathroom breaks, I'm talking about your performance issues.
And you keep bringing it back to performance issues. Because the peeing thing will backfire on you. Her doctor will back up her need to go potty whenever she wants, because she won't go in and say, "I'm up from my desk every half hour," and you can't really call up her doctor and tell her the real problem.

And keep in mind, the bathroom breaks aren't really the problem. It's the poor performance. I also suspect she's not getting up, running to the bathroom and is back in less an two minutes. I suspect she wanders down the hall to the bathroom, chats with whoever she runs into, checks her hair and make-up in the mirror and uses each bathroom break/water fetching activity as a true break. If you had a high performer who was also running to the bathroom frequently, you wouldn't have written me. (And I have been pregnant and I have felt like a reasonable accommodation would be to have my own dedicated bathroom stall, but I kept my performance up and no one other than the other pregnant woman who I always ran into in the bathroom noticed.)

You do need to write up a formal plan for performance improvement. If she says she can't possibly meet the goals because of the bathroom breaks, you will need to have the medical reasons documented and you will need to work with your HR department to make sure you are in compliance with pregnancy discrimination laws. You are required to make reasonable accommodations, but you are not required to make unreasonable accommodations. And no law requires you to ignore poor performance, even from a water guzzling pregnant woman.

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