If an employee fails to show up due to psychiatric issues, can I fire or ask for a resignation without discriminating against them?

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If an employee fails to show up due to psychiatric issues, can I fire or ask for a resignation without discriminating against them?

We are a small veterinary clinic with at-will employees. Is it discriminatory on the basis of disability to fire an employee who has been out on 2 different occasions due to psychological issues? We learned that the employee was out due to a CA Code 5150 call (involuntary confinement), and think the employee might have suicidal issues; employee’s performance and behavior at work show no indications of aggressiveness or inability to care for self. Employee has CIS on short notice for a total of 5 days during the last few months. This adversely affects small staff who must fill in for the absent employee.

Asked on April 24, 2011 under Employment Labor Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

You should consult with an employment law attorney before doing anything. As a general matter, an employer is only required to accomodate an employee's disabilities, including pyschiatric or emotional problems, if (1) the condition rises to the level of a "disability," which not all issues do--though a history of involuntary committment suggests that in this case, it does; and (2) the employee has requested accommodation (such as schedule changes)--but, and especially with mental issues which can affect communication, there are no "magic words" the employee must say; instead, if it's reasonably clear that the employee is seeking an accommodation due to a disability, that may be enough. Furthermore, any accommodations, including schedule or shift changes, time off, reduction in hours, etc., must be "reasonable" for that employer, given its size, the employee's job, etc.

Therefore, this is a very fact intensive, situation specific inquiry, and the stakes are very high--if you discriminate due to a disabilty, the company can face substantial liability. It is therefore well worth while to consult with an attorney on the matter.


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