Recently, a supervisor was off work for a short while for surgery. Since coming back to work, her performance has been problematic. After observing her behavior we believe she may have psychological issues that need to be addressed. Should we simply terminate her, demand she get help or release her with the option to reapply in the future if her emotional issues resolve?

First, employers have no right to dictate treatment to employees. Emotional issues may be a cause for permanent disability, a side effect of post surgery medication or post surgery pain-related. It is important to make sure no ADA or FMLA related regulations are bypassed when dealing with this employee. It is equally important that any medical information disclosed by the employee during discussion be kept confidential.

The recommended approach is a non-threatening conversation about your concerns. As much as possible this should be focused on observable actions the employee has taken and any discussion of emotional problems or psychological issues should be instigated by the employee.

There are psychological conditions such as depression that qualify as “serious” under FMLA. Additional time off can be offered to eligible employees or intermittent time off for therapists appointments…etc. A permanent emotional disability could be grounds for ADA reasonable accommodations. Simply terminating the employee before investigating the FMLA and ADA implications could expose the employer to legal action.

A hard nosed approach (once the FMLA and ADA possibilities are examined) is to treat this as a performance issue and follow the company’s uniform disciplinary process to impose suspension or termination. Any disciplinary action must be based on observable performance and behavior and not on employer or manager perceptions.

Hope that helps you out. =)

A note about HR laws:
Laws concerning employee treatment, benefits, hiring and firing…etc are multi-level. What this means is that there are Federal laws, state laws and sometimes local regulations that have jurisdiction over an employee. The information presented here should not be considered legal advice. Ultimately, employers with serious legal questions should consult local attorneys with expertise in worker relations.
The questions and answers presented here are based on research and data from internet sources and should not be considered the final word.

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