January 17, 2024
When Employees Develop Dementia
I'm terrified of losing my ability to think and remember. It's what I do for a living and my favorite sport. I just hope that if I do lose my mind, I don't know and don't care.
For employers, it's difficult territory that requires both care and compassion.
Robin Shea offers excellent advice about how to handle an employee who develops performance issues from dementia that can be accommodated—until they can't.
The first line, "Expect to see more of this" is exactly right. It's not just the aging workforce. Brain fog and dementia can also be caused or exacerbated by Covid, including in young adults.
This is worth your time to read and consider then bookmark for later because it's likely you will need it sooner than anyone wants or expects.
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.
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.
Step Three: The meeting.
I'm envisioning an in-person meeting, but the meeting could take place by videoconference or even by phone.
Step Four: Follow up.
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.
CompAnalyst® Pay Equity Suite can help you achieve and sustain pay equity