Your employee has dementia: what to do?

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, lost clients, 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 for her, 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 essentially 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 (paid subscription may be required for access), "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 for age and disability discrimination.

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? Does it appear that the employee has been given the expectations and a fair opportunity to improve? 
  • 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.

And put all of the above in a letter to the health care provider. In addition to educating the provider, the letter can serve as your documentation.

Be aware that if you do send the employee for a medical assessment, you may be stuck with the potential for a "regarded as" disabled claim. But if the employee can't perform the essential functions of the job with or without a reasonable accommodation, a "regarded as" claim should not be a major concern. Nor would it be, of course, if you are able to accommodate.

If you are able to make reasonable accommodations, by all means do so. If not, go on to Step Two.

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? If you offer a pension or other retirement benefit beyond 401K, is the employee old enough and does he or she have enough length of service to qualify? Is the employee old enough to be eligible for Social Security retirement benefits?
  • Check the applicable insurance policies to determine in advance whether the employee has to be "active" to qualify for benefits. If so, you can place the employee on a leave of absence pending approval. Many employers will leave the employee on the rolls through the STD period. Once the employee qualifies for LTD benefits, which usually means they will never be able to return, the employer will "administratively terminate" the employee (no-fault termination). However you want to handle, be sure you have thought this through, in consultation with employment counsel, before you meet with the employee. 
  • Because you believe the employee may be impaired, consider whether it would be helpful to include the employee's spouse, adult child, or other person close to the employee in any meetings. A "companion" might be able to help the employee understand what is going on, and may also be able to remind the employee later about what is happening, and why. If you decide to try this, be sure to get the consent of the employee in advance, and in writing.
  • Prepare a written summary of what you will discuss with the employee (that the employee's performance or behavior has deteriorated to the point that he or she cannot continue, that the employee is being placed on a leave of absence, and what benefits the employee may qualify for). Keep it simple, and use bullet points. Have it reviewed by your employment counsel.

Step Three: The meeting.

I'm envisioning an in-person meeting, but the meeting could take place by videoconference or even by phone.

  • Following your talking points, explain to the employee (and, if applicable, the companion) what the issue is and what is going to happen.
  • Offer assistance with any necessary benefits applications or other paperwork, in coordination with the employee or (if the employee prefers) with the employee's companion or other representative.
  • Give the employee the opportunity to ask questions, either in the meeting or afterward.
  • Make arrangements for the employee to collect belongings and to any return company property or information that he or she has, preserving the employee's dignity and privacy as much as possible.
  • If you discuss anything that was not covered in your pre-prepared talking points, send a follow-up communication to the employee confirming what was discussed.

Step Four: Follow up.

  • Do everything that you can to help the employee qualify for benefits as soon as possible (submit claim forms for STD, assist with Social Security applications, etc.). Keep the employee (and, if applicable, companion or representative) informed about what you are doing, and what they will be required to do themselves.
  • Provide regular updates on the status of claims to the extent that you know.
  • As the end of the STD or other initial leave period approaches, do everything that you can to help the employee qualify for LTD benefits if they are available.
  • Send a letter to the employee explaining what he or she can expect at the end of the STD or initial leave period. This should include the fact that employment will be administratively terminated and should again make clear that it is not a "fault-based" termination.
  • Once the STD or other initial leave period expires, send a final follow-up letter to the employee explaining that employment is being terminated. This should include the same information about termination that was in the semi-final letter described above. It should also include any final information related to benefits, if applicable. And, of course, you should invite the employee to contact you if any questions arise in the future.

This is a heartbreaking situation for the employees and their families, but also very difficult for their employers. Following these steps should help the process go as smoothly as possible under the circumstances.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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