How to approach an employee showing signs of cognitive decline

June 12th, 2018 by Sofija Anderson at Littler

This blog was written by Sofija Anderson at Littler. Littler authors our Model Policies and Forms for Maine Employers. You can find the original blog post here and Littler's series of Dear Littler questions and answers (which is very helpful) here.


Dear Littler: We have an employee who is exhibiting signs of dementia or some other sort of cognitive impairment. He has fallen asleep at work a few times recently and seems confused by tasks that did not pose any problem for him in the past. His performance was solid for years but started declining in the past several months, along with his attention to detail. How do we handle our concerns about his well-being and performance? Should we ask him what’s going on with his health?

                                                                                                 —Worried in Wisconsin

Dear Worried in Wisconsin,

While it might be tempting to ask your coworker about his health in light of your genuine concerns, you should resist prying. It is important to be compassionate when you see an employee struggling—but you and your employer also must be careful not to jump to conclusions or ask this employee unlawful medical questions.

We will briefly review some of the legal and practical issues posed by your question. On the whole, you should focus initially on addressing existing performance problems. Once that process is underway, you can see where it leads you, keeping in mind your obligations under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and related state laws.1

Manage Observable Behaviors

At the outset, let’s recognize what you know and don’t know about this situation. Your employee’s performance began to deteriorate relatively recently, and he has become lethargic and confused at work. This marked change is significant and alarming. But while you can see and measure some of the effects of this decline, you really do not know the cause.

The employee’s decreased productivity could indeed be due to the onset of dementia, Alzheimer’s, or some other cognitive impairment. Or, these symptoms could be caused by illegal or legal drug use—even as an unfortunate side effect of a prescription medication. Your employee might also be suffering from depression or another physical or mental condition, such as sleep apnea. He may be dealing with some unknown stress in his personal life, including difficulty with caregiving for a family member or bouncing back after a loss. He might even be tired and distracted from moonlighting.

Because you are missing key pieces of the puzzle, you should simply stick to what you know. Moreover, as a representative of the employer, your role is limited to managing the employee’s work and work-related conduct. Keeping in mind your position and the information available, your response might begin by reviewing and documenting mistakes made by the employee, including missed meetings or goals, instances of confusion or sleeping on the job, or other concrete problems. If you or other colleagues are just now noticing these concerns, you may need to monitor the employee’s performance for several weeks to get a sense of the real scope of the problem.

Once you have a fuller picture of the situation, you can address performance deficiencies with the employee. Before presenting your concerns to the employee, consider consulting any company handbook or policies (and perhaps someone in HR) to ensure that you are complying with your employer’s procedures. At this point, you should plan to proceed with the conversation, including any discipline or counseling, just as you would with any other employee who is not meeting expectations.

Try to Avoid Medical Inquiries

In your communications with the employee, bear in mind that the ADA largely prohibits employers from asking medical questions or requiring workers to undergo medical procedures or tests.2 This restriction precludes any inquiry that is likely to elicit information from an employee concerning a disability, including the nature or severity of a disabling impairment. According to guidance from the Equal Employment Opportunity Commission (EEOC), for example, an employer should not ask an employee (or his or her coworkers, friends, etc.) if he or she has a disability or whether the employee is currently taking medication.3

The EEOC has indicated, however, that employers may ask questions that are not related to a protected disability. An employer therefore could inquire broadly about an individual’s well-being and similarly could ask an employee who looks tired if he or she is “feeling okay.” Likewise, if an employee has a broken arm, it is acceptable to ask what happened to cause the temporary injury. An employer may also ask if a worker can perform relevant job functions. Nonetheless, employers in your shoes should tread lightly to avoid asking too many questions that, even if well-intentioned, could violate the ADA or a state law counterpart.4

Apart from that general limitation, the ADA allows employers to make disability-related inquiries if “job-related and consistent with business necessity.”5 In short, an employer may ask medical-related questions (or require an examination) if it has reason to believe—based on objective evidence—that: (1) the employee poses a “direct threat” because of a medical condition; or (2) a medical condition will impair an employee’s ability to perform his or her essential job functions.6  

Let’s take a quick look at those exceptions. The term “direct threat” refers to a situation presenting “a significant risk to the health or safety” of the employee or others “that cannot be eliminated by reasonable accommodation.”7 To authorize an employer’s medical inquiry, the significant risk must be ongoing. The risk should be evaluated on a case-by-case basis, considering its duration as well as the likelihood, imminence, nature, and severity of any potential harm.8 In addition, risks are presumably elevated where employers are engaged in physical or dangerous work. One court, for example, held that a forklift driver with a heart condition that could cause him to become incapacitated posed a direct threat in his workplace.9 Your question does not suggest that your employee’s performance issues pose any such threat of danger, however, so we can probably rule out this rationale.

The second approach is tied to an employee’s ability to perform his or her job essential job functions. As described by the EEOC, an employer could rely on this rationale to ask disability-related health questions if it “knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition.”10 An employer would also be justified in making such inquiries if provided reliable information, from a trustworthy source, that leads to the same conclusion.11 While this exception seems like a better fit than the direct threat analysis, it still requires objective, credible information that an employee has a medical condition. Because you are missing that essential element, as noted earlier, you and your employer should not comfortably rely on this approach as grounds for asking medical questions of the employee.

As a result, Worried in Wisconsin, when you speak with this employee about documented performance problems, you should consider avoiding any questions that might elicit information about any potential disability. To the extent possible, leave it to the employee to decide whether to disclose any physical or mental impairment.

Be Aware of Your Reasonable Accommodation Obligations

Nonetheless, you should prepare for the possibility that the employee has a medical or psychological condition and chooses to tell you about it. The ADA requires a covered employer to engage in an interactive process with an employee once it becomes aware that the employee is having difficulty working because of an impairment that might constitute a disability under the statute. If this employee discloses such a condition as the cause of his performance issues—or if that becomes obvious based on your meeting—you should begin that interactive process to see if a reasonable accommodation can be identified.12

Reasonable accommodations can take many forms, depending on the circumstances and an individual’s needs. Accommodations may include making workplace facilities accessible, job restructuring, modifying work schedules, or reassigning the individual to a vacant position.13 The underlying “purpose of the ADA’s reasonable accommodation obligation is to require employers to change the way things are customarily done to enable employees with disabilities to work.”14 You and the employee may need to exchange information about the nature, severity and duration of the employee’s impairment as well as the activity or activities that the impairment limits and to brainstorm solutions before hopefully agreeing on a reasonable accommodation, if necessary.

When undertaking this process, your employer should consider whether any state or local laws might affect the analysis of the employee’s status or potential reasonable accommodations.15 Indeed, Wisconsin’s Fair Employment Act (WFEA), which likely applies to your workplace, is broader than the ADA in several respects. For example, the ADA expressly excludes certain workers from protection—including current users of illegal drugs—but the WFEA does not. Additionally, the WFEA does not limit its analysis (either for assessing disability or for accommodation purposes) to duties that are deemed “essential functions” of an individual’s job, as under the ADA. If an employee establishes that he or she has an impairment that “makes achievement unusually difficult or limits the capacity to work,” the employer is obligated to grant a reasonable accommodation to allow the individual to complete the duties of his or her job.16 If challenged for refusal, Wisconsin employers bear the burden of showing either that a proposed reasonable accommodation would impose a hardship or that it would not enable the employee to perform his or her job duties adequately.17 It’s always a good idea for employers to stay familiar with any state or local laws applicable to personnel decisions.

Don’t Forget the Potential Overlap with the FMLA—or Other Leave Opportunities

Finally, in the course of your conversation with the employee, you may learn information that triggers your employer’s responsibilities under the FMLA, or a state-law equivalent.18 The FMLA entitles eligible employees to take up to 12 workweeks of leave per 12-month period, due to a serious health condition affecting their ability to work or to care for a child, spouse, or parent with a serious health condition.19

Importantly, an employee does not need to mention the statute or use any special language to give an employer sufficient notice that FMLA leave may be needed. Thus, if your employee suggests that a leave of absence would be helpful as he explains his circumstances, your employer likely should treat that comment as a leave request. In evaluating any such request under the FMLA or state law, also keep in mind any leave program that your employer may offer. Your employer should enforce its own policies in a consistent and fair manner, as it simultaneously works to comply with the ADA, FMLA, and any applicable state laws.

In sum, Worried in Wisconsin, try to restrain the impulse to ask what is going on with this employee from a medical perspective. Instead, initiate a conversation about performance issues and see whether he offers an explanation that invites accommodation or some other mutually-agreeable solution. Best of luck to you both!

HR Webinars
Terminations Got You Down? 5 Tips to Tighten Your Termination Tactics
December 17th, 2018 at 12:00pm CST by Brian T. Benkstein at Fredrikson & Byron

Unconscious bias - whether you realize it or not
December 18th, 2018 at 11:00am CST by Margaret A. Matejkovic, Esq. at Kastner Westman & Wilkins, LLC

HR Articles
SavE tHE offICe hoLidAY PArTy!
MeToo, avoiding women, and the modified Mike Pence Rule
Carnac the Magnificent says – Politicussin
Non-competes for non-skilled – non-productive, non-legal, non-enforceable?
Discrimination CHARGE! – Step 3 Cause or no cause, because you gotta do something
Discrimination CHARGE! – Step 2 Go Kim Possible for the investigation phase
Discrimination CHARGE! – Step 1 Don't panic, ask questions
Depression – what can an employer do?
Employers beware - what you say can and will be used against you
Holiday stew – ingredients for a happy and non-litigious holiday
MO - The weed du jour - marijuana médicale
Biometrics in the workplace - not a measure of bios accumulated by an employee
Thanks-giving isn't just about turkeys - include the good employees too
The best "stay" to help you retain employees
Overtime, daylight savings time and circadian rhythyms
Controlling the political speech of buttons*
Cursing, surfing, weapons, gadgets – illegal, inappropriate or OK?
How to Ghostbuster a new hire or applicant
Election leave – employer's civic duty, migraine, or just wishful thinking (election, leave!)
Costumes, booze and the Great Pumpkin – beware the office Halloween party
Disability – Dr. or employee approved?
401(k) plan + payroll provider = 401k good things
Disability/pregnancy practices – what not to practice
Bad hire! Bad, bad hire!
TN – A drug-free workplace program is good
Open enrollment – personalizing perks pays off
Unpaid intern – depends on who benefits
The #1 office perk is . . . ?
FMLA leave before being eligible for FMLA leave
IL – Required expense reimbursement for your employees, not Bill Self
Help hiring holiday help here
Are the new DOL opinion letters like noses?
Public disclosure of confidential information is easier than you think
Bad mix – accommodation request and firing
If religious accommodation and a flu shot both equal angst, is that the transitive or substitution property?
Workplace shootings – 20 can-dos to prevent them
No call/no show shows. No what about it.
List 10 Up: Top tips for starting a workplace incident interview
Mr. Freeze unveils National Security Freeze tagline: "They can't steal your identity if it's frozen"
If it's called a dress code, can I wear pants?
I've changed my name – to Optimus Prime
TN: Conceal and carry means post to prohibit or permit
I'll take "ADA in 5s?" please Alex
Swearing at work – 7 rules
Is that red light flashing?
Four-legged office mates and the pawternity policies they benefit
Notice: notices and forms for FMLA that were already expired now updated virtually unchanged
Don't feel ripped off when you get ripped off – get even
School-related parental leave does not mean you forge a note from your kid
NY: Draft model sexual harassment policy/training released
Discipline - Demote - Depart or Communicate - Counsel - Channel
ICE audits II – FAQs to make you wiser
Round up stew: sick leave, harassment, non-compete, etc.
Identifying trade secrets does not mean figuring out how to barter better
ICE audits have nothing to do with freezer police
Being at work full time is not an essential function of a job?
List 10 up: Positive employee relations training: reap the benefits of engagement
Employment agreements – what to do before you do
Background checks of the future are continuous
Treating service animal requests (always treat the animal)
Prepare for saying "No" – you need to decide how to refuse service
List 10 up: What's the deal with employee handbook rules?
I cannot tell a lie . . . you're fired for cutting down the cherry tree
Milk Stork delivers for working mom's and their baby
Job tasks and essential functions under the ADA
Who are you? Why are you here? Personality testing?
No, you can't sleep on the job
Technology driving the hiring process
Should you give your employees a little Slack – or do they have enough already?
"We need to talk" isn't any easier to say than to hear
Bet employers must make: call and raise your minimum wage
Zero tolerance for "zero tolerance" policies
Ralph Waldo Emerson as a productivity consultant
Is the employee "disabled" under the ADA?
The six step DOL audit polka
PTO on the house!
New rules for work rules
Dr. Strangelabor or: How I Learned to Stop Worrying and Love the Millennial
Did Bartleby the scrivener write his own job description?
"Treating" disgruntled or bad behaving employees
Hiring under the age of 18
DO NOT LICK THE BRAIN! and other obvious stuff
Helping your employees save for emergencies
Right to bare arms in the workplace
#MeToo quiz
Under standing desks
How to approach an employee showing signs of cognitive decline
Dress codes should not be encoded
Foul language *
Rorschach, Horshack and Abednego
Don't ask a woman the gender of her child, especially. . .
Guidelines for a valid no-solicitation/no-distribution policy
All aboard the Love Train for long-term onboarding!
Gender and workplace bathrooms
No FMLA for pet's death
Personal hygiene in the workplace
Yes Virginia, there is a St. Patrick's Day in Ireland
Master the modern method for managing March Madness
Drug testing in The Office
Background checks
"Thank you" and "I'm sorry" – meaningful, simple and impactful
Michael Corleone HR tip for the day
S'not flu or it is, doesn't matter
Be prepared for ICE raids
Looking for employees: an untapped source of talent
Calling Dr. Love(less)
Non-exempt employees – what counts as wages?
HR is not a happy accident
Do new hires have to be a culture club fit?
Remote workers and telecommuting
When former employees ask for references
Model written lock out/tag out program
Wrong table cat
They might be giants . . . transforming healthcare?
Conducting internal I-9 audits
The Nebraska Chamber has issued a W-2 challenge to state taxpayers
The impact of super bowl(ing)
12 steps to handling violence in the workplace
Workplace retaliation: don't give in to the Dark Side
Would you really want to work with a bunch of yous?
What is the ADA?
Monty Python should not write your job descriptions
FMLA definitions
Unemployed or wear a bra – are those the only choices?
What "government shutdown" means for employers
An intern by any other name
FMLA - "leave" as in "leave the employee alone"
 “M,” “F,” Or “X”? Nonbinary Gender Designations in the Workplace
Sexual harassment – can't find it – what now?
Probationary periods
Employee contracts
How to treat fringe benefits for employees
Attendance policies
Different repeal
Temporary and leased employees
Birthdays in the workplace
Needy employees
Holiday parties - acknowledge, avoid, assume (nothing)
Dress codes: who, what, wear
Punch clock
Nepotism: favoring relatives and friends in the workplace
Year-end performance reviews
Hiring interviews
The Form I-9 has changed… Again!
Service dogs at work
Bring your own gun
Social media
Year-end or holiday incentives
Arizona sick day policy
Paternity leave
HRsimple spotlight - Fiona Ong
Permissible post-accident drug testing
Paid family leave: a growing trend
Politics in the workplace: how to remain legally compliant during election season
Termination Series: Communicating the reason for discharge
It’s only a matter of overtime
Interview with attorneys at Kastner Westman & Wilkins
Valentine's Day heartaches around the office
Safety and health tips
Wearable technology
Favorite HR sites
Back to school time is here!
Vacation policies and time off
Interview with author J. Hagood Tighe
Non-compete agreements
Workplace romance
Bullying in the workplace
Employment references
Telecommuting or remote (control) workers
Social media and employment
Performance evaluations
Interview with attorneys at Wilson Worley PC
Interview with attorneys at Knudsen Law Firm
Interview with Kathy Speaker MacNett
Firing, a job to do right the first time
Job advertisement do’s and don’ts
Employee handbooks – getting a handle on your policies
Technology in the workplace
Interview questions: do's and don'ts
Employee personnel files