Q We have an employee whose work performance has been slipping lately. We have reason to believe that she is suffering from depression because she was diagnosed as bipolar and had a bout of depression a few years ago that led to a similar decline in her work performance. We allowed her to work a modified schedule for a brief period while she was being treated by her therapist. She hasn’t requested another accommodation recently. Can we discipline her, up to and including termination, based on her performance, or do we need to take steps to address her depression under the Americans with Disabilities Act (ADA)? 
A Both the ADA and many state laws place the initial burden on the employee to inform her employer of a need for an accommodation. However, in the situation you describe, given the employee’s history of depression and her attendant performance issues, a court could find that your company was on notice of her need for an accommodation, even though she didn’t request one. That’s particularly true since she required an accommodation to address her performance issues the last time she had a bout with depression. When an employer has knowledge of an employee’s disability, she need not use the word “accommodation” to trigger the ADA obligation of engaging in the interactive process.
You should call the employee in to discuss her performance issues. Don’t ask her if she’s suffering from depression, but do ask if there are any accommodations you can provide that will help her perform her job duties. If she tells you that she doesn’t need an accommodation and doesn’t give you any indication that she has had a relapse of her depression, then you should address her performance issues as you would for any other employee. If, on the other hand, she tells you that she is finding it difficult to get her work done properly because she’s experiencing depressive episodes related to her bipolar disorder or gives you any other indication that her performance is suffering because of her disability, then you should proceed with the interactive process.
You should first ask the employee if there are any accommodations that she feels will help her better perform her job. You could allow her to work a modified schedule, as you have done in the past, or she may propose another accommodation altogether. I prefer to seek the advice of the employee’s healthcare practitioner in these situations. I typically have the employee give her healthcare provider a form that contains the following questions (among other things):
- Identify which, if any, job functions the individual is totally restricted from performing with or without an accommodation and how long you anticipate those restrictions will last.
- Identify which, if any, job functions the individual is currently able to perform with some restrictions in magnitude, duration, method, or manner. Specifically, identify the applicable restrictions and how long you anticipate those limitations will last.
- Identify any and all accommodations you are aware of that may enable the individual to perform any of the job functions discussed above.
By involving the employee’s healthcare practitioner, you will avoid making assumptions about her condition that may or may not be accurate.
Susan Hartmus Hiser is a shareholder with The Murray Law Group, P.C., in Detroit. She may be contacted at shiser@murraylawpc.com.