Employee depression
September 4, 2012 7:36 AM   Subscribe

What else can I do as an employer to motivate/accommodate my depressed employee? Or, barring that, fairly and effectively end our engagement with him?

I run a small consulting company. We have about 6 full-timers and a handful of other staff. One of our employees is clinically depressed. His attendance at work for the past nine months has been absolutely dismal. We're talking 45-60 hour (two week) pay periods when he should be hitting 80 (or at least around 70+).

He regularly misses at least one day a week, frequently comes in after noon and leaves around 5pm or 6, and has no-called/no-showed a handful of times. He is completely unreliable.

We've tried carrots, we've tried sticks. He used to be full-time salaried, but he burned through his 3 weeks of PTO and was so patchy that I had to switch him back to an hourly W-2. We offered him a cash bonus if he'd just come in to work and hit 70 billable hours over the next two weeks, but he couldn't manage that. He's explained that he recently was broken up with by his girlfriend and/or is depressed and/or any number of other issues. Regardless, he continues to say he'll try to improve and never does.

We haven't been able to just outright fire him yet because we still need those 25-30 or so hours every week and because finding a suitable replacement is tough. Tougher still when we're very busy like we are. But it's about the time where he's practically doing more harm than good, even if we try to put him on not-time-sensitive tasks.

I have a very busy September on the books. I have solid work for all of my staff. They typically work in paired teams, so not being able to put him on a team is devastating to me since I can't work a one-man team. We're actively interviewing candidates and the like, but we're not close to hiring a new worker, so:

What can I do, if anything, to motivate someone like this? I understand that clinical depression is a serious illness and that it can manifest this way. I'm also weary of any potential liability I may have from firing him, even though we have well-documented cause over the past nine months. When he shows up, he usually works at a somewhat reasonable pace, gets along well with everyone in the office, and otherwise gets stuff done, mostly.

He's (voluntarily) told us he's on anti-depressants, and I presume he's either seeing a doctor or therapist, but I don't ask those questions for obvious reasons. At this point, there either needs to be a sea change in the next 30 days, or we need to transition towards letting him go effectively.

We're paid up on unemployment and workman's comp, but we're a low margin business who can't support having an employee that contributes basically nothing any more. (If he were to make a workman's comp claim, would that cost us directly? Is depression eligible for workman's comp, even if the depression isn't related to a workplace injury?)

I get that this is something I, even as an accommodating employer, can do very little about and that he's dealing with his condition. I'm just asking if there's any other things I could consider, or barring that, if I need to be concerned about liability/financial ramifications if I need to let him go. (I have basically zero expectation he would pursue anything legally or otherwise, though we'd instruct him that he's eligible for unemployment, of course.)

Any ideas or perspective would be helpful. We've really tried everything. When he first started with us, this wasn't a problem. But starting into his second year or so, things have gone downhill dramatically, and while I'm trying to stay understanding of that and how it may not be in his control, I can't keep him on payroll if he's literally not contributing anything.

I'm trying to be fair and I'd really like to keep him on board, but it's seriously hurting us at this point and I don't know what else to do.

Thanks in advance!
posted by anonymous to Work & Money (19 answers total) 4 users marked this as a favorite
Just a request for more info from the OP - I'm presuming the United States, but what state?

My only suggestion of "untried avenue" is an unpaid leave of a certain amount of time, a 30 day "turn it around" plan with goals and milestones. Performance Improvement Plan. Here's a jumping off point from National Parks Service (they're govt, rules likely similar for you, nonetheless a starting point for guidelines). And one from Indiana University.

Anything else would be a guess from me, but I will venture to say that I really can't see where a non-workplace series of issues would be cause for paying out workman's comp for depression.
posted by tilde at 7:44 AM on September 4, 2012 [1 favorite]

Speaking as an employment lawyer (but not your employment lawyer), this is something you should run by an employment lawyer in your state. They can help you determine what the potential liability is, and whether it makes sense to consider offering him some sort of separation package with a release to make sure he doesn't pursue anything legally. It might. It might not. A good employment lawyer will be able to walk you through this stuff, and will hear you when you say you're trying to be fair.

I might know someone in your jurisdiction, feel free to memail me if you want a recommendation or more information on how talking to a lawyer might work.
posted by dpx.mfx at 7:45 AM on September 4, 2012 [6 favorites]

IMO, this guy needs to be either fired, or go on unpaid leave until he gets his shit together. Depression is awful, but it's also his responsibility, not yours.

If he's disclosed the fact that he has an illness that directly effects his ability to work, you need to speak with a lawyer before canning him. Firing someone with a disability can quickly turn into a clusterfuck -- he might not be litigious, personally, but what if his family or friends convince him he was fired inappropriately? -- so you need to know what you could potentially be up against, and be prepared for it. Outside of the ADA, every state has their own regulations for these things, and you need to know if you can say "sorry, we reasonably accommodated you and it didn't work, good luck!" or if it's going to be more complicated than that. I can assure you that a consultation with a lawyer is a whole lot cheaper than the latter.
posted by griphus at 7:45 AM on September 4, 2012 [5 favorites]

Anon, are you in the United States? If so, check out the Job Accommodation Network. Really, they have a lot of great advice even if you're not in the US - it's just that they can't help you with legal adherence stuff if you're elsewhere. This is their list of mental health-specific advice. The Bazelon Center for Psychiatric Rehabilitation also has some good info; if you want more of this kind of stuff just MeMail me.

Note this specific answer (again, US-law only)
Q. Can I fire an employee with a disability who is not doing the job?

A. The ADA only protects “qualified” employees. Someone is qualified if s/he can perform the job, either with an accommodation or without an accommodation.

While legally employers must provide reasonable accommodations to qualified employees, employers are not expected to change the standards of performance, or the essential functions of the job itself, with the exception of modifying or eliminating marginal, or nonessential functions of the job. Typical procedures for taking disciplinary actions with employees who are not performing the essential functions of the job can be followed.

If you are unsure whether you should accommodate or discipline, you can contact the Job Accommodation Network at 1-800-526-7234 for free technical assistance in sorting out these questions.
I recommend you write down a VERY COMPREHENSIVE timeline of everything that has happened, every meeting you've had, all the call-offs, all the no-call/no-shows, etc., before you call JAN.

(I'm not as good at finding non-US stuff, but I'm willing to help you try; I have some experience with Canadian and UK questions. Watch out for state laws, too, by the way - especially California.)

As for being nice/trying to help him, the things my employers have done include:

1. Having a short-term disability program that let me leave work for a while to get help. I'm actually on short-term disability now for depression symptoms.

2. Having an EAP program. They never had to make me go because I went before they knew I was having problems, but they have made other employees go as a condition of continued employment. The deal with that seems to be that they can make you sit there and listen to the EAP counselor, or take classes, but they can't make you participate, and the EAP counselor is really limited in what they can tell your boss. My EAP counselor came in for conversations (including the "are you sure you can do this" conversation, see my Ask history) with my boss and my boss's boss a few times, as well.

3. Letting people work part-time or on a flexible schedule or work from home some of the time. This usually depends on the duties of the position in question.

4. Asking me to address the specific issues (relating to my work problems) with my counselor. It gets kind of touchy here, and I'm not 100% certain it was legal, but I have been asked point-blank by my boss whether I'm working on attendance/getting to work on time with my doctors & therapists. The answer was yes, so that's what I told them, but they had no way of verifying that, so.
posted by Fee Phi Faux Phumb I Smell t'Socks o' a Puppetman! at 7:52 AM on September 4, 2012 [4 favorites]

Find a lawyer and figure out what it takes to fire this person. Then, before firing them, tell them that you've accommodated them as much as possible, and from this point on, they will need to come in to the office for their scheduled 40 hours a week. If they miss any days without calling and without a doctors note, they will be fired. Then you stick with this.

If this person is really so crucial to your business that you can't fire them, then something is wrong with the business. Imagine if he just quit one day, how would you proceed? You will do the same thing when you fire him, except you'll have that plan in place ahead of time.

While I understand wanting to accommodate him, it sounds like you've done more than enough already. The truth is that you have an unreliable employee, and regardless of the reasons, he is absent much more than what is reasonable. If you didn't know this person was depressed, and thought he wasn't coming in because he'd rather be at home playing Halo, would you still be hiring him?

Talk to a Layer to get your ducks in a row, and then give him one last opportunity to do things right. If he can provide doctors notes explaining his absences than you may need to let him stick around longer, but if he is not properly doing everything he can to work out his problems and actually meet the job requirements, there is no reason you should keep them employed.

I'm not trying to be dismissive of people with depression, I understand it is terrible and have family who has experienced it, but if he can't even show up for work than that is an issue he needs to resolve. You shouldn't have to go out of your way just to get him to show up.
posted by markblasco at 7:58 AM on September 4, 2012 [6 favorites]

The ADA only applies to covered employers, which generally means you need 15 employees to be covered. Your state may have laws that cover smaller employers. This is why you need to talk to a lawyer who is your lawyer.
posted by dpx.mfx at 8:08 AM on September 4, 2012 [3 favorites]

Just coming in to say markblasco nailed this one. Be compassionate, but fire them. Those two things are not mutually exclusive.
posted by bfranklin at 8:12 AM on September 4, 2012 [2 favorites]

My heart goes out to the employee. I was him, a couple of years ago. It was fucking miserable, knowing how much I was disappointing the people around me; coming up with excuses and explanations for why I wasn't doing what I was supposed to do; trying to decide how much of my misery and efforts to deal with it I should share with people who really didn't need or want to know; trying to get the strength to do something else, when it took all the strength I had to drag myself into that fucking office for another 10 or 8 or 5 hours of abuse; trying to make up for it by working late, drinking lots of coffee, getting frustrated, giving up, feeling dead the next day but knowing I had to start the same groundhogs day hell cycle all over again. Just thinking about it makes my eyes water.

Then I got fired. With a lot less compassion or preparation than what you seem to be thinking about. It was a shock for about a week and then a huge a relief and then a true enlightenment and lifting of weight from my shoulders that allowed me to finally get out of the rut my brain had dug me into. I didn't do that alone. A therapist, getting on the right meds (thank you lamotrigine) and a couple of people to talk to made all the difference.

Your employee's MMV. A lot. Please don't fire this guy based on my advice. And don't tell him you're doing this for his own good. But its worth thinking about.
posted by RandlePatrickMcMurphy at 8:18 AM on September 4, 2012 [6 favorites]

If you're in an "at will" state, fire him under that condition. I just went though a nearly year long wrongful termination suit that I could have avoided if I hadn't tried to work with the guy and then fired him based on performance. "at will" pretty much can't be contested.

And, it sounds like you made an effort, his problems are not your responsibility.
posted by HuronBob at 8:19 AM on September 4, 2012

I'm pretty sure that you can't realistically fix somebody with depression, especially not within a pre-specified timeframe (as you seem to have in mind). The fact that you have an employer/employee relationship makes it even more of a minefield, since mixing personal and professional issues can easily be grounds for litigation.

Therefore this is exclusively a business issue and need to be dealt with using standard methods; e.g., having redundancies built into your business model. I second the idea of consulting an employment lawyer before letting him go.
posted by wolfdreams01 at 8:27 AM on September 4, 2012

You know you need to talk to a local lawyer, right? One who specializes in employer-side Employment law. The consultation will be so worth it, I can't even tell you. Either you will get peace of mind and a script to follow to fire the guy, or you will have been steered away from a hornet's nest.

If you need a recommendation beyond dpx's, above, go to either your local bar association and get a referral or use Martindale.com as a starting point. Make sure you get someone whose practice is employer-side.
posted by fingersandtoes at 8:31 AM on September 4, 2012

In agreement with markblasco and bfranklin.

Be aware that something else may be going on other than the diagnosis he's told you about, and markblasco/bfranklin's advice continues to apply anyway. A lot of people who suffer from depression show up to work without too many problems, BTW.
posted by Currer Belfry at 8:31 AM on September 4, 2012 [1 favorite]

The federal ADA applies to employers with 15 or more employees. State laws may apply to smaller employers. Under the ADA, there is an obligation to accommodate employees with disabilities, barring undue hardship. Accommodations recognized by the EEOC include leaves of absence and modified schedules. Contact an employment law attorney for guidance.
posted by ClaudiaCenter at 8:36 AM on September 4, 2012 [3 favorites]

You run a company and have several employees? Then I'm sure that as a responsible employer, you have an attorney to advise you in complying with employment law. You need to speak with this professional about the situation. Strangers on the internet who don't know your jurisdiction or all of the applicable law can't tell you what to do.
posted by John Cohen at 9:00 AM on September 4, 2012

Could you cope in the short term with 20-25 hours per week from him until you find a replacement? If he's functional when he shows up maybe reducing the pressure to put in the hours will help him feel better and he may even be able to show up 30-35 hours if he feels less pressure to do so. From your point of view, a good productive 20 hours is better than a forced 35 hours.

Also, have you considered allowing him to work from home some of the time? He's probably sleeping in (and possibly staying up late) and he may not be 100% on top of his laundry. Allowing him to put in the hours when it suits him (even after office hours) and in his PJs if needed may get more work out of him under the circumstances.

Has his depression worsened since the switch to hourly? The drop in income and reduced financial security may also be a contributing factor.

Of course, if he knows you're interviewing for his replacement that can only add to his stress. I'm sure you're aware that depression feeds itself and can be a downward spiral, anything that makes him stressed or worried could worsen his depression, leading to poorer performance, then more stress etc.

Have you tried asking him what he thinks might help? Be sincere, you don't want more "I'll try to do better", you want concrete, workable solutions.
posted by missmagenta at 9:09 AM on September 4, 2012 [2 favorites]

Is depression eligible for workman's comp

In general, getting psychological conditions covered under workers' compensation regimes is pretty tough. Workers compensation generally only applies to accidents and tends to exclude "diseases" except those that result from an accident. Depression, particularly with an readily identifiable source outside the workplace, is going to be very, very difficult to get covered. If he makes a claim, it will likely be denied. Whether or not this will cost you anything will depend on the regime in your state.

we'd instruct him that he's eligible for unemployment

Except he might not be. Many states don't offer unemployment benefits to those who voluntarily quit or are fired from their jobs for cause. No-showing at work is just cause, especially if it's frequent. So don't tell him he's eligible until you know that he is.

Basically: get yourself an employment lawyer and start the process of getting rid of this guy. You are not his counselor. You are not obligated to do change his job description on the basis of his alleged difficulties. You are not obligated to put your business on hold while he sorts through his issues.

But you will need a lawyer.
posted by valkyryn at 9:22 AM on September 4, 2012 [2 favorites]

. I just went though a nearly year long wrongful termination suit that I could have avoided if I hadn't tried to work with the guy and then fired him based on performance. "at will" pretty much can't be contested.

One of the primary exceptions to At-Will employment is if the employee is of a protected class, and this includes handicapped employees. From the wikipedia article.

Although all U.S. states have a number of statutory protections for employees, most wrongful termination suits brought under statutory causes of action use the federal anti-discrimination statutes which prohibit firing or refusing to hire an employee because of race, color, religion, sex, national origin, age, or handicap status.

So as someone who runs a similar sized business and married to an attorney who does a bit of employment law (she's a labor attorney who frequently gets sucked into doing employment work for her clients) I have to also say $500-$1000 bucks to a good employment attorney is money well spent (and good knowledge for you) in figuring out an action plan to move forward with.
posted by bitdamaged at 10:09 AM on September 4, 2012 [1 favorite]

Lots of possibly bad advice here (no way to tell without a lot more information) about unemployment, workers comp, and disability. All that stuff is increidbly fact-specific and we don't have nearly enough facts. This is why people hire laywers. The sooner you hire the lawyer, the more likely they are to be able to help you. Lawyers, especially employment laywers, should be thought of as partners for your business. Please, please, please consult a lawyer now, or there's serious potential you'll be forced to contact one later.
posted by dpx.mfx at 10:44 AM on September 4, 2012 [1 favorite]

In your shoes, I would ignore every piece of advice here except the advice to consult with a qualified employment lawyer in your state.

You should know also that there are much better resources on legally-accepted ways to accommodate disabled employees than AskMe. The Job Accommodation Network that Fee Phi Faux linked to is one of the best ones.
posted by Snarl Furillo at 12:10 PM on September 4, 2012 [2 favorites]

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