Q One of our employees recently told the HR director that she “prays for death every night.” Is there anything we are legally required to do in response? 
A A condition that causes an employee to become suicidal may be covered under the Americans with Disabilities Act (ADA). In that case, it would be an unlawful discriminatory practice to take adverse employment actions based on her condition, and she may be entitled to a reasonable accommodation. If an employee states that she “prays for death every night,” it might be best to initially address the situation under the assumption that she has a condition covered under the ADA.
You should begin by having a private conversation with the employee. Don’t ask if she has a medical condition. Rather, ask if there is anything you or the company can do to help. You can also ask if anything at work is causing or contributing to her problem and if she has any ideas about work-related changes that could help. If she has reasonable requests for accommodations, you should grant her requests. Follow up with her to ensure that the accommodations helped solve the problem. If not, it may be time to seek advice from your attorney to determine whether the employee is suffering from a condition covered by the ADA.
Be sure to document the entire process. Keep a confidential written record of:
- The employee’s complaint(s);
- Your inquiry about how you could help;
- The fact that you didn’t ask whether the employee has any medical conditions;
- The employee’s suggested accommodation;
- The fact that you provided the accommodation; and
- Your follow-up with the employee to see if the accommodation worked.
The only time it may be OK to ask an employee whether she has a medical condition is when the inquiry is job-related and consistent with business necessity. For example, the employee’s ability to perform essential job functions may be impaired because of the condition, or she may pose a direct threat to herself or her coworkers. However, it’s a good idea to consult your attorney before asking the employee if she has a medical condition.Although you generally shouldn’t ask whether an employee has a medical condition (such as depression), you can offer to listen to her and provide personal concern, support, and understanding to her as an individual and as a valued employee at your company. You shouldn’t ask about personal problems, but you can listen if she brings them up and wants to talk about them. It’s better not to offer advice, but you can offer hope that she will find a solution to her problems.
You can also let the employee know that counseling is available—for instance, through an employee assistance program, a crisis intervention or suicide prevention resource in your community, or a suicide prevention hotline. Be careful not to pressure the employee or imply that counseling is required or is some type of punishment. Again, keep your conversation confidential.
Kaitlin L. Hillenbrand is an attorney in the Bridgeport office of Steptoe & Johnson PLLC. She can be reached at 304-933-8161 or kaite.hillenbrand@steptoe-johnson.com.
The approach outlines gives the impression of an inhuman, uncaring organization. I could not disagree with this approach more. Where I work the first thing, not the last thing, we do is offer the EAP counseling.