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.