Free Enterprise - The FindLaw Small Business Law Blog

Can You Fire an Employee With Depression or Anxiety?

Running a business and being the boss has its challenges. One common struggle small business owners face involves firing employees who struggle with personal issues, illness, or disability. Sometimes an employee's illness or disability can lead to work rules violations, such as missing work unannounced or taking additional break-time. This is common for sufferers of anxiety and depression.

In addition to worrying about the health consequences of firing an ill employee, you may also worry about legal consequences involved. Can you get sued? This may especially be a worry if the employee requested a reasonable accommodation under the Americans with Disabilities Act. Fortunately, a recent federal appellate decision in favor of AT&T can provide much needed guidance to employers both small and large facing this sort of situation.

Not All Reasonable Accommodations Are Reasonable

While employers are expected to provide disabled employees with reasonable accommodations needed to perform their job duties, not all accommodations will be considered reasonable, and not all employers must comply with the ADA. As a preliminary matter, if a business has 14 or less employees, or only operates for 19 or fewer calendar weeks per year, then the business may not be required to comply with Title I of the ADA, which governs private employment.

Depression or Anxiety and the ADA

Reasonableness requires a fact-sensitive analysis, which will vary from case to case, and from employer to employer. Anxiety and depression are recognized disabilities. But like any other disability, the reasonable accommodation an employee requests must be reasonable for the employer to implement.

If the requested accommodation is not reasonable, either because the cost is too high, or it imposes an undue hardship or burden on the employer, and there is no agreeable reasonable alternative, then an employer will not liable under the ADA for disability discrimination or retaliation if they terminate an employee that cannot perform the job duties.

In the recent AT&T case, an employee with depression sued after being terminated. While the court recognized that the employee's depression qualified the employee under the ADA as disabled, the court ultimately found that the reasonable accommodation requested was not reasonable, and that AT&T was justified in terminated the depressed employee for excessive absenteeism.

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