ADA and Depression...again

System

We have an employee who told her manager that she has depression, as well as another emotional disorder and her performance is suffering. She has rejected the offer to take time off to take care of herself. She is not eligible for FMLA but may be protected by the ADA (I'm assuming she is for the time being, at least until we find out there are no accommodations). Her manager did ask her what she needed from us to succeed, and she said more structure in her position. This was done, and she agreed, but nothing changed.

Here's my question:
Can we ask her (& her doctor)legally, to provide a Fitness For Duty form that would tell us of any accommodations she may or may not need to perform her job at 100%? Or is this already a non-issue since she turned down the opportunity for time off and accommodations? If she doesn't provide it (Fitness for Duty) to us, she would be subject to the same performance reviews and disciplinary action as any other employee, correct?

I want to make very certain we are giving her every opportunity possible, but yet not feel like we're walking on eggshells with this situation.

Thanks.

System

Well, I must have stumped everyone on this, or the answer is so simple it's right under my nose.

The situation has been resolved - the employee voluntarily resigned, but I'd still like to have some feedback from anyone who has dealt with this so I know for future reference.

Hatchetman

[font size="1" color="#FF0000"]LAST EDITED ON 04-19-02 AT 09:38AM (CST)[/font][p]If she told you that she had depression and there was demonstated work performance problems, yes, you could ask her treating practictioner, a psychiatrist or psychologist, to assess her ability to perform the duties of the job successfully with or without reasonable accommodation and to provide you with a summary report. You would need to have sent to the practitioner, the job description and the requirements of the job, as well as a description of the job performance problems she was having. You could have obtained a second opinion, from another practitioner, at company expense. If the two disagreed, then a third and final deciding opinion could have been obtained at company expense.

The issue of whether or not she needs reasonable accommodation because of a disability, is a slightly different question. It is a little more limited in scope. The assumption for this quesiton is that the emplyee is able to perofmr the duties of the job, but may need an accommodation to help. She of course would need to meet the criteria for being disabled under ADA (or any similar law for your state): whether or not her condition substantially impairs one or more major life activities. Merely claiming depression or being depressed isn't sufficient. The question about her ability to perform the essential duties of the job is a broader one because it does go to the underlying medical and psychological status of the employee in relation to the overall job. The question about reasonable accommodation under ADA is targeted to identifying what the employer most likely needs to do in job modification that would allow the employee to perform the essential duties of the job (assuming something can be done).

In this case, you had made the alteration without the determination that she was ADA qualified. Most likely that wasn't "fatal." It sounds of is what you did in the way of modificaiton is something you would have done for any employee merely on the emplyee's reuqest. If so, no problem. But if you did it only because the employee had claimed she was depressed, and you considered her to be "disabled" then you could you have been in a worse situation.

If an employer treats or regards an employee as disabled, even though she isn't, then under ADA, the employee is considered "disabled." So, the general rule is never go merely on the employee's assertion that he or she is disabled. Always make the assessment if you need to look at reasonable accommodation, unless of course, you would make the accommodation without requiring justification for any employee.

System

Thanks so much for your thorough response....I will keep this for future reference.