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Allen M., Esq.
Allen M., Esq., Employment Lawyer
Category: Employment Law
Satisfied Customers: 18790
Experience:  Employment/Labor Law Litigation
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I am a Wisconsin employer (22 ees). I had an employee (EE)

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I am a Wisconsin employer (22 ee's). I had an employee (EE) come to my Office Manager (OM) this morning - crying and telling her that she “is a basket case”. EE told OM that she is undergoing some serious mental health issues and is under a doctor’s care.

My OM told her that we had noticed a considerable difference in her over the past week/two...things that ee used to be able to do independently was now requiring multiple questions, a lot of time and much of what she does is full of errors. EE agreed that this has been the case.

EE told OM that she was going to try to get through the day – that she could not afford to take a day off. OM told her that we need her 100% and that we would need to send her home if her work performance continues to suffer – that as a company, we can not pay her to just “be here." OM asked if there was anything that we could do to make things easier for her in her work environment – ee said "No." EE also said she was not taking any medications. After meeting, EE made it about 1/2 hour into the work day and said she needed to leave/go home.

What are our obligations as an employer (ADA etc) - we simply can't afford to have someone in the position that is unable to perform the job functions.
Thank you for your question today, I look forward to assisting you. I bring nearly 20 years of legal experience in various disciplines.

You are correct that you are not required to have an employee just sit there. If she can not perform the functions of her job, the ADA doesn't require you to lower the standard to a point that she can meet it.

Now, she did make what sounds to be a request for reasonable accommodation. You weren't specific about what she requested probably because she wasn't specific. She said "is there anything you can do to make the work enviornment easier?" While not really specific, it would meet the standard of a reasonable accommodation request.

I think that you should call her and explore with her what reasonable accommodations she actually thinks might help her there. If they involved lowering the standards or removing key tasks, they are not reaosnable accommodations. If they are things which don't lower the standards or remove key tasks, then it might be something you legally have to consider trying.
Customer: replied 3 years ago.

To verify....step one is trying to accommodate wherever possible but holding her accountable. Is there a reasonable amount of time to work with this, or just play by ear and see where it goes? As a small business, this puts a huge strain on other staff....but understand working with ee and trying to help her through it would be a win win for both sides.

There is no set time frame, but you have to play it be ear, keeping in mind that you have to be prepared to argue (if you were to make her stay home or terminate her) that you made efforts to accommodate but they didn't work.

Obviously, you want to be able to make that argument with a straight face, so giving her more time (a month or two) rather than less time (one week) is appropriate.

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