Question: We received a call from an employer who is having difficulty with a new employee who is a recruiter for the company. This employee has had performance issues which have been addressed on two occasions. She has been placed on probation because she is not performing the job requirements. While discussing steps to release her with HR, she disclosed that she has depression and anxiety; she canceled a meeting with other team members; and then called out of an event that she was expected to be working as part of her job, which left another staff member on their own.

The company wants to move forward with her release because she is not able to perform the functions of this job. The disclosure of anxiety and depression only came after she was informed that she was on notice for dismissal. The employee worked quickly to make an appointment with a therapist but has not asked for accommodations. What rights does the company have as her employer? Given the steps we have taken, are we able to release an employee with a now disclosed disability from our employment because she is unable to do the job and is still within 90-day probationary period? 

Response: Employers do have the right to terminate the employment of any employee including employees with disabilities who are not performing the essential functions of the job. To determine which tasks are essential, review why the position exists, the job description and the tasks that other recruiters perform. Like with any employee, a company can follow its disciplinary process, including termination of an employee with a disability. If this employee disclosed a disability before the decision to terminate was made, discuss with her whether she needs a reasonable accommodation. If the company made the decision to terminate before the employee disclosed a disability, the company does not have to rescind its decision to terminate.

Questions to ponder:

• What are the essential job functions of a recruiter?
• Are job descriptions up-to-date and specific?
• Is the company’s policy around disciplinary action being followed?
• Where in the disciplinary process did the employee disclose a disability?

Conclusion based on the information: An employee with a disability has to be able to perform the essential functions of a job with or without reasonable accommodations. Generally, employers are not expected to know that an employee has a disability. An employee can disclose their disability at any time, but an employer doesn’t have to rescind any disciplinary action taken prior to the disclosure.

The New England ADA Center provides Information, guidance and training on the Americans with Disabilities Act. The Center does not enforce the ADA; but provides informal guidance. The New England ADA Center is part of the National Network of regional ADA Centers.