Illinois ADA Project

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Anchorage Daily News (Anchorage, AK)

April 25, 2010

Don't ignore worker's claim of depression

LYNNE CURRY, MANAGEMENT

Q. Our accounts payable clerk, "Sandy," has worked here for a year. She did a good job but not a great job during her first six months. Then her work started to slip. One of Sandy's co-workers confidentially told me Sandy was going through a really bad time with her kids and ex-husband, and I cut Sandy some slack.

Unfortunately, Sandy's errors mounted. Two months ago, I met with her and said that if her work didn't dramatically improve we'd need to terminate her. Sandy began to cry and told me she was on anti-depression medication. She said she found it hard to concentrate. She couldn't afford to lose her job and guaranteed that she'd improve. I told her we all cared and that she simply needed to work accurately.

Sandy's work performance got better for a week and then the mistakes started again. I brought her in again. After that, Sandy's performance picked up and then again fell.

Last week, I gave Sandy a final warning, only to have her hand me a note from a counselor saying that Sandy's depression was a disability covered under the Americans with Disabilities Act and I couldn't fire Sandy as long as she could handle the basics of her job.

Sandy also said she could avoid errors if she could telecommute, because then she wouldn't worry about her kids being alone when they came home from school and could work her eight hours when she could best focus. I feel for this woman, but I've put up with this as long as I can and I don't want to reward an employee for behavior problems by letting them work from home. Your thoughts?

A. As you suspect, your choices became more difficult the moment Sandy handed you her note. Given the September 2009 amendments to the Americans with Disabilities Act, "it is almost certain that the expanded ADA covers an employee diagnosed with depression," says attorney Bill Evans.

Even if you planned to terminate Sandy before she handed you that memo, take the ADA seriously. When Pacific Gas & Electric Co. asked a depressed attorney to resign after his work slid, the employee sued. According to the employee, he could have performed his job if PG&E had cut his hours and made other changes to accommodate his depression. An arbitrator awarded the employee $1.1 million. When an employee claims a mental illness, says attorney Christopher Bell, employers "can't assume it's a bogus claim by a malingerer and ignore it."

Accordingly, says attorney Evans, your "battle becomes, 'How reasonable is the accommodation your employee requests?' To prevail without problems, employers have to establish a demonstrable willingness to work with their employees. Although telecommuting rarely constitutes a required accommodation, employers may need to adjust employee's work schedules."

Your key question is whether Sandy can get her work done accurately if you accommodate her as she requests. From what you've said, Sandy did a decent job in her first six months and then her performance faltered. Twice she improved, only to backslide.

Although telecommuting can prove a win-win alternative for employers and talented workers who need to or appreciate being able to flexibly balance home and work schedules, workers at home who lack discipline find it all too easy to wander away from their work tasks and busy themselves with non-work activities. Managers and co-workers can find it challenging to communicate with and supervise those out of sight and often out of mind. Telecommuters lacking self-discipline fail to manage time well, creating bottlenecks and disrupting workflow. Remote contact magnifies rather than eliminates the problems caused by employees with poor communication skills. Given what you've said about Sandy, telecommuting might prove a recipe for trouble.

Attorney Evans says that although you need to accommodate Sandy's depression, you have the right as an employer to decide on an accommodation that works for you, as long as your choice provides fairness to your employee. Given what you've said, allowing Sandy to take extra leave on days she feels unable to work or to work fewer hours during each day might help her during a trying time and not expose you to serious risks.

Finally, you might be kicking yourself for delaying a decision out of compassion for Sandy. You did the right thing, but you simply allowed the "slack" to go on too long. Don't prolong your next steps. Let Sandy know right away how you plan to help her. Then, if you and Sandy try your collective best and can't make the situation work, you need to seek legal counsel and Sandy may need to find another job.