How to handle ADA requirements with a possible mental disorder of an employee

April 2, 2014

Question:

I have an employee who I think has a mental disorder. I know she is having a tough time at home with some personal issues, and I think she is suffering from clinical depression. She seems distracted at work and sometimes we notice her crying at her desk. How should I deal with this? Can I ask her to see her doctor or get on some medication?

Answer:

The Americans with Disabilities Act (ADA) prohibits the employer from asking an employee about a disability unless the employee has requested workplace accommodations. The employer may also inquire about disabilities if they are related to the job and necessary for the conduct of the business.
Therefore, if you would like to discuss the behavior with the employee, it is very important to approach the meeting as a personal conversation regarding your genuine personal concern for the employee, rather than as a disciplinary meeting or work-output meeting.

In the meeting, you may describe the observations that you have made and explain that if the employee in fact does have disability, that the company is willing to engage with the employee in an interactive process to see how to best accommodate the employee in the workplace. It is important to express concern and let the employee know that the company is open to working with the employee. It is also important to let the employee know that the company respects her privacy, and that she is not in disciplinary trouble and that she is under no requirement to talk about her health with any company employee or manager unless she voluntarily chooses to do so. You may wish to conclude the meeting by expressing that the employee’s health, well-being and happiness are important to the company, and that the organization is open to ideas to help the employee if she is, in fact, going through a difficult period.
However, you should not directly ask the employee about any disabilities or transpose any disabilities onto the employee (such as making a statement like, “if you are depressed…” or “if you need an anti-depressant…”).

Following the meeting, we recommend making some notes for your files with regard to what was discussed with the employee. We do not recommend placing such notes into the employee’s personnel file. It is important for you to sign and date the notes and retain them in a private location, such as the employee’s medical file.
If the employee’s medical issue begins to rise to the level where it is adversely affecting the employee’s job performance, only then would it be time to require some documentation from the employee’s treating physician or to begin the disciplinary process. Prior to doing so, it is imperative to consult with your HR Consultant or legal counsel.