Q One of our workers has been with the company for about three years. From the outset, he has been an outstanding performer. About four months ago, however, he went through a divorce, which appears to have had a major impact on him, and he seems distracted. Both the quantity and the quality of his work have suffered demonstrably. I have given him two written warnings that he must improve both the quantity and quality of his work or face discharge. The last warning was about a month ago, and I have seen no improvement. Can I terminate him now for poor performance? 
A Before doing so, make every effort to determine whether he might be “disabled” within the meaning of the Americans with Disabilities Act (ADA) and explore accommodations for his condition.
2008 amendments to ADA broaden definition of ‘disability’
The ADA Amendments Act (ADAAA), adopted by Congress in 2008, made it much easier for an individual to establish that he has a disability protected by the ADA. Indeed, the amendments provide that the definition of “disability” should be interpreted in favor of broad coverage for individuals. Even episodic or sporadic behavior, such as the apparent inability to concentrate, will likely qualify for protection as long as the employee’s symptoms limit a major life activity when they are active.
Your obligation as an employer is to reasonably accommodate “known” impairments. Generally, that means a job applicant or an employee must ask you for a reasonable accommodation, but he need not say that he needs an accommodation, use any special words, or mention the ADA to trigger your accommodation obligation. Your obligation to accommodate a disabled worker commences when he simply says that he needs a change at work, such as being allowed to arrive later on certain days so he can attend therapy sessions.
Limited scope of permissible medical inquiries
The fact that you are aware that the employee has recently gone through a traumatic divorce is probably enough to trigger your obligation to inquire further, but your right to ask medical questions is limited under the ADA to four situations:
- When an employee asks for a reasonable accommodation;
- After you have made a job offer but before employment begins, as long as you ask everyone in the same job category the same questions;
- When you are engaging in affirmative action for people with disabilities, such as by tracking the disability status of your applicant pool in order to assess your recruiting and hiring efforts; and
- When there is objective evidence that the employee may be unable to perform his job or may pose a safety risk because of his disability.
You have sufficient information to justify further inquiry into the disabling impact of his divorce on his job performance.
Engaging employee in the interactive process
Approach the employee, reminding him of your prior warnings. Tell him that you want to explore with him what you might be able to do to enable him to improve his performance so it won’t become necessary to terminate him. Request a letter from his healthcare provider (if he has one) that documents his mental condition and states whether he needs a workplace accommodation.
Bottom line
Don’t automatically assume that accommodating an employee’s mental disability will necessarily be costly or burdensome. Some reasonable accommodations for mental disabilities are relatively benign, such as changing the start time or end time of the employee’s workday to permit him to attend doctor’s or therapy appointments.
You can choose the solution that best suits your business as long as it permits the employee to perform his job. Be sure to confirm your discussions with the employee in writing. With minimal effort, you may be able to produce positive results for both you and your employee.
Robert P. Tinnin, Jr. is a partner in Tinnin Law Firm, A Professional Corporation in Albuquerque, New Mexico. He may be contacted at rtinnin@tinninlawfirm.com.