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Is Depression a Disability?

Our accounts payable clerk has worked here for a year and a half. For the first year, she did a good but not a great job. Then, her work started to slip and she began to make minor errors. I met with her and counseled her on the errors and the decline in her productivity. She said she knew she had to do better but suffered from depression and found it hard to concentrate. I told her I was sorry but that her work had to significantly improve and she started to cry, saying she was getting a divorce and couldn’t afford to lose her job.
I hoped things would get better but they haven’t. Her work performance continues to be spotty. This morning I brought her in for a “final warning” meeting, intending to discharge her if she doesn’t improve. She then told me that her counselor had told her depression was a disability covered under the American’s with Disabilities Act and I had to work with her as long as she could do the basics of her job. Is she correct?
She also asked if she could telecommute, saying that she could perform the bulk of her work from her house and that that this would be an accommodation to her depression and help her take care of her kids during the divorce. When I said, “well, would you be taking care of your kids or working?” she said she would maintain a 100% work focus. She said telecommuting would simply give her the chance to be in the house when her kids got home from school. She also said that if she could work from home she wouldn’t have to face other employees when depressed and thus could produce error-free work. She offered not to charge us for her travel time each day to pick up and drop off her work.
This whole thing makes me uneasy but I feel for this woman. I’m wondering – do arrangements like this work? I feel like I’m being held hostage.
Telecommuting provides benefits to and poses challenges for both companies and workers. The work-at-home option gives employers the opportunity to attract and retain talented individuals who often work for a lower salary in return for the ability to live a commute-free life. Many workers love the opportunity telecommuting gives them to work in an at-ease environment and flexibly balance home and work schedules.
On the other hand, telecommuting employees who value contact with co-workers generally find their at-home isolation more difficult that they initially anticipate. Further, those who lack discipline may find it all too easy to wander away from their work pile and busy themselves with non-work activities.
For employers, telecommuting poses huge hidden hazards. Managers find it difficult to supervise and co-workers find it difficult to communicate with those out of sight and often out of mind. Telecommuters lacking self-discipline may fail to manage time well, creating bottlenecks or otherwise disrupting workflow. Further, remote contact magnifies rather than eliminates the problems caused by those with poor communication skills. Given what you’ve said about this employee, telecommuting could prove a recipe for worse trouble.
A lot obviously depends on whether your employee’s depression constitutes a disability. Depression currently accounts for nearly two percent of the claims filed by employees under the ADA. According to five attorneys surveyed, depression may or may not be a disability, depending on the depth of your employee’s depression and whether it limits a major life activity, such as working.
Occasionally, depressed employees win the right to employer accommodation or damages from employers who refuse to accommodate. For example, when Pacific Gas and Electric Company asked a depressed attorney to resign after his work slid, the employee instead filed suit. According to the employee, he could have performed his job if PG&E had cut his hours and made other changes to accommodate his depression. An arbitrator awarded this employee $1.1 million. Says attorney Christopher Bell, when an employee claims a mental illness, employers “can’t assume it's a bogus claim by a malingerer and ignore it.”
If your employee’s depression constitutes a disability, you have to accommodate to her if she can do the essential functions of her job without causing you an undue hardship. You don’t, however, have to allow her to telecommute. As an employer, you have the right to decide on an accommodation that works for you, as long as your choice provides fairness to your employee. Given what you’ve said, allowing your employee to extra leave on days she feels unable to work might help her during a trying time. Finally, if you and she try your collective best and can’t make the situation work, you may need to seek legal counsel and she may need to find another job.

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