Excerpted from a Constangy Brooks Smith & Prophete LLP Blog by Robin Shea
Expect to see more of this.
A judge in Connecticut recently dismissed a lawsuit filed by a 26-year employee who developed early-onset Alzheimer’s disease. According to the court’s opinion, the employee had performed well for many years but then took a sudden downturn that included serious mistakes and other potentially dire problems for the employer.
When her supervisor counseled her about her poor performance, she disclosed her Alzheimer’s diagnosis. For a couple of years, the supervisor tried to make accommodations, and eventually reduced her workload by 75 percent, but she still couldn’t do the job. She was ultimately terminated, and she sued the employer for disability discrimination under Connecticut state law, which appears to be very similar to the federal Americans with Disabilities Act.
The court found that the employee was unable to perform the essential functions of her job, that she had not requested a reasonable accommodation, and in any event that no reasonable accommodation was possible.
According to a recent article in the Washington Post, “The share of older Americans who are working, by choice or necessity, has doubled in the past 35 years.” The article, based on a study by the Pew Research Center, noted that reasons for older workers to choose work over retirement include better health, less-physically-demanding jobs, and (for many) the end of defined-benefit programs.
With more older workers, employers may increasingly have to address employees with dementia. And doing so improperly can put employers at risk of legal claims.
Here are some suggestions for employers who suspect that an employee may have dementia or another cognitive impairment that is affecting the employee’s performance or behavior on the job:
Step One: Know what you’re dealing with.
- Review the employee’s performance or behavior issues, and how they have been addressed. Have they been addressed? Does the documentation focus on those issues without speculation about medical or age-related causes?
- Do you know for a fact that the employee has a medical condition (for example, Alzheimer’s disease), or are you just speculating?
Under the ADA, you may be entitled to send the employee for a medical evaluation as part of the reasonable accommodation process. But make sure that you have some actual examples of performance or behavior issues to give to the health care provider (and also to justify your sending the employee for a medical assessment). In the case of an employee with suspected dementia, this could include emails that don’t make sense, other strange behavior, or just a significant unexplained change in behavior or demeanor. Be sure to describe the job duties and environment to the health care provider and ask whether there are any accommodations that the provider would recommend.
Step Two: Prepare for “the talk” with the employee.
- Take stock of the benefits that you offer. Do you offer short-term disability benefits? If so, how long is STD in effect, and what does the employee have to do to qualify? Is long-term disability available at the end of the STD period? If you don’t offer these (or, if they were optional and the employee did not opt in), can someone in your company help the employee with the process of applying for Social Security Disability benefits?
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