HR Management & Compliance

Depression: Can We Fire a Depressed Employee Who’s Not Up to Par?

We have an employee who just got divorced, and lately he’s been coming to work late and cutting out early. His work is suffering, too—he’s making lots of careless mistakes and has been short with our customers, not to mention picking fights with his co-workers. While he used to be a better employee than he is now, he’s never been great and I’ve been thinking about letting him go. Are there any legal problems with that? — Fed up in Fresno


 In a word, yes. Our CELA editors explain why.

There’s no question that depressed employees can hurt a business in various ways. Workplace depression costs American employers $44 billion annually in lost productivity, according to a recent American Medical Association study.

Thomas P. Guck, Ph.D., associate professor at Creighton University Medical Center and past president of The Wellness Council of the Midlands Board of Directors, notes that “we are only beginning to understand the significant relationship between depression and loss of productivity in the workplace.”

Employee May Be Protected Under ADA

But firing a depressed employee is not the answer. “Mental impairments” including anxiety disorders, schizophrenia, and depression can be considered disabilities under the Americans with Disabilities Act (ADA). So if your employee is in fact suffering from depression, he may be protected under the ADA.

For this reason, it’s legally risky to tell an employee that you believe he or she may be depressed. It’s also a very bad idea to fire or otherwise discriminate against an employee based on your belief that he or she is depressed, regardless of whether the employee is actually suffering from the condition.

Smart Ways to Deal with a Depressed Employee

Instead of firing or disciplining the employee, talk to him about the specific ways his performance has been falling short and ask for suggestions on how the problems can be fixed. Avoid trying to diagnose the employee and focus on solutions instead. For example, “Jim, this week you came in 35 minutes late on Monday and 15 minutes late on Tuesday. And on Wednesday, Sally told me that you snapped at her in front of a customer. Is there anything going on in your life that’s affecting your performance here? Is there anything we can do to help you excel at your job?”

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Listen to what the employee says and try to work out a solution, regardless of whether or not the employee mentions depression. Maybe a flexible work schedule is the answer, or reassignment to a less stressful post (as long as such a move is not viewed as punitive). And keep in mind that an employee who asks for time off to treat depression may be eligible for family and medical leave.

Finally, document everything as you go-both the employee’s performance problems and the steps you’ve taken to rectify them. You’re not required to retain an employee who is unable to perform his job, with or without a reasonable accommodation, even if the employee is protected by the ADA. If you decide to let the employee go, it might be a good idea to consult with counsel before taking action.

A Final Thought

Instead of confronting a possibly depressed employee directly with your concerns, it’s better to create a supportive environment in which employees feel comfortable asking for help. Guck says it’s important for top management and particularly frontline managers to eliminate the stigma associated with reporting depression. “Depression is a legitimate health condition; it is not a character flaw,” he says.

2 thoughts on “Depression: Can We Fire a Depressed Employee Who’s Not Up to Par?”

  1. I worked for a Mental health facility for 28 years. Never a reprimand in those years . I changed to a new job in the place of employment called the A.C.T team my job in this group was picking up and transporting them to our facility and other facility in another county . I picked up the worst of the worst . I had psychotic felon’s . I went through a murder/suicide with my mom and dad on November 25 2009 and lost my only brother 8 months later to Lou Garrick disease ..I got through all that and worked up till the 14th of December .the new super visor had it out for me from the start as she did others….she wrote me up for a very silly misunderstanding and 3 weeks later sent me home 3 days without pay ..I live by my self and barely make . I went back continued my job and something snapped with me I fell in deep depression on the anniversary date of their death ..they both died that night from head shot wounds ..I live in the house it happened in ..I was on medical leave and they called me into a meeting while I was on leave and drilled me with questions ..I was numb .I had become friends with a client who was a very nice person we became close because the supervisor told me to pick him up almost on a daily basis “because he was bored she said and needed to get out ..we were together almost daily for long hours …well they told me in the meeting to not have contact with him I barely remember the meeting ..I was talking to him back and forth and I received a certified letter in the mail saying I was fired 🙁 I gave them 28 years of my life and they threw me out like a piece of trash. the new team leader has done wrong to several good people . I don’t know what to do at this point I am devastated …

  2. See a lawyer. One who specializes in employment law. Go to a legal aid organization and they should be able to help you.

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