Lisa, one of your team’s sales representatives, has been a consistent performer during her first year with the company. She has proven herself to be detail oriented, personable with clients, and willing to assist her team to reach collective goals.
But in the past few weeks, something has changed. Lisa has been late for meetings with key targets, and has even missed a few altogether, with little or no explanation. She is often inexplicably absent in the afternoons, and distant with her team members. Several days ago, she even went on a public, expletive-laden rant in the office about a joint project. You call Lisa into your office to issue her a written disciplinary warning for her unprofessional outburst and recent poor performance, consistent with the company’s progressive discipline policy. During that meeting, she says that she has been suffering with depression, and it has been impacting her work in recent weeks.
What should the company do in response? Can it proceed with issuing the written warning? And what must it do going forward, given Lisa’s comments during her disciplinary meeting?
As a preliminary matter, the company may discipline Lisa for the lateness and frequent absences that occurred before she disclosed her depression, so long as such conduct violates an established workplace policy that is both job-related and necessary for the conduct of the business. Assuming that the company has a policy prohibiting habitual tardiness and chronic unexplained absenteeism—given the critical need for its sales force to collaborate and meet with clients and prospective targets—it can proceed with Lisa’s written warning. If the company would discipline a colleague for similar conduct, it can discipline Lisa for it as well.
However, once it is put on notice, the company has an obligation to engage with Lisa—pursuant to the Americans with Disabilities Act and other state and city analogs—in order to determine whether she has a disability that substantially limits a major life activity. Since Lisa has indicated that depression has affected her ability to function normally at work, the company may request medical documentation that describes such limitations. After receiving such documentation, the company may assess whether, and how, it might reasonably accommodate any disability going forward. A reasonable accommodation could take many forms, based on Lisa’s unique needs. It could include, for example, delayed start times, less in-person collaboration, or other alterations to the work environment or work schedules that would permit her to successfully perform the key functions of her role. It is important to remember that time off can constitute a reasonable accommodation in certain cases, and that Lisa may also be entitled to take time off for her mental health condition under the Family and Medical Leave Act.
What about that profanity-laden outburst in the office? What if further discussion with Lisa, or medical information provided by her doctor, reveals that she had made prior threats of suicide due to work-related stressors like those that led her to lose her cool? In that case, the company may consider whether Lisa may not work at all, based on whether she poses a “direct threat” to her health or safety or that of others in the workplace under the applicable legal framework.
And what if the documentation from Lisa’s doctor does not provide sufficient information to indicate that she suffers from depression , or that her depression limits a major life activity? In that case, the company should communicate with Lisa regarding the issues with her documentation, and allow her to supplement it. Assuming that any supplemental documents do not resolve the issue, the company may have her attend an examination by an appropriate medical provider of the company’s choosing—and at the company’s expense—which must focus only on Lisa’s depression and any limitations that may result from it. Should that examination suggest that Lisa does not in fact have depression, or that such depression does not substantially limit any major life activity, the company should give careful consideration regarding how to proceed.
For help with the nuanced and fact-specific assessments needed at the intersection of performance management and mental health issues, employers are encouraged to contact the authors of this article or another attorney in Venable's Labor and Employment Group.