Hot(line) Topics: Employee Cognitive Concerns

By Ben Opp, SPHR, HR Hotline Advisor
Published July 9, 2024

Q: An employee with 30+ years of service is showing signs of cognitive decline. He frequently can’t remember how to perform tasks he’s been doing effortlessly for years, doesn’t remember decisions made in meetings, and sometimes gets lost in our building. He’s a beloved member of our staff community. What should we do?

I regularly hear stories like this on the HR Hotline, and they always tug at my heartstrings. Employers want to show compassion and empathy to a valued employee and honor their years of excellent service, but also must address a performance deficit impacting the team, or even a genuine question of safety.

Before taking any action, carefully document your specific observations about the employee’s behavior and performance, as well as those of his manager and any coworkers who may have come forward with concerns. Exclude any assumptions or interpretations about what may be happening and focus solely on the facts.

The “Green Light” Approach: Performance Management
The safest approach from a compliance perspective is to address the performance deficit. Identify areas where this employee is not meeting expectations, including recent, specific examples – these might be tasks that aren’t getting done, a decline in work quality or quantity, or a breakdown in collaboration or communication. Meet with the employee and share these concerns, just as you would in any other instance of poor performance.

Next steps will depend on how the employee responds. He may take this opportunity to share a diagnosis and request accommodation, in which case you should enter the Americans with Disabilities Act (ADA) interactive process and request appropriate documentation. If he doesn’t, you should continue to engage the situation like any other performance problem and in accordance with your policies, which might include coaching, discipline, or a Performance Improvement Plan (PIP), and may ultimately result in termination.

The ”Yellow Light” Approach: Fitness for Duty Exam
Alternatively, you could consider sending this employee to his doctor to be evaluated – we call this a “fitness for duty exam.” However, you must ensure that the facts of the situation meet the legal standard for requiring such an exam. If you’re considering this option, read our deep-dive article for details, and run the situation by one of our HR Hotline staff before moving forward.

What other resources can we offer?
If the employee agrees with your concerns and isn’t sure what to do next, you might suggest that he utilize his company health benefits or refer him to your Employee Assistance Program (EAP).

Can we ask if he has any medical issues or is taking a new medication that might be causing these problems?
Generally, no. You should either address objective performance issues or seek a fitness for duty exam if allowable under the law. If the employee volunteers medical information that seems job-related, it’s probably fine to ask clarifying questions about job impacts and needed accommodations.

Can we call his emergency contact or speak with a family member about our concerns?
Outside of a genuine medical emergency, you should not speak to emergency contacts or family members about an employee’s performance or medical issues.

Can we take away sensitive job duties, bar him from work travel, or transfer him to an easier job?
If performance management leads to a job transfer or demotion, these steps could be reasonable. Keep in mind that the ADA protects employees who are “regarded as” having a disability, even if they don’t. Be careful not to make decisions based on assumptions or perceptions – this could look like discrimination.

Can we ask when he plans to retire, or suggest that he should?
No. These questions raise concerns about age discrimination. However, if he broaches the topic of retirement, you may ask clarifying questions about his intentions and timeline.

Can we fire him?
This is the “red light” approach! You should not terminate without following your performance management and/or progressive discipline policies. Termination outside of your standard practices is likely to be construed as age or disability discrimination.

How can I get more help?
Situations like this are challenging and require empathy paired with compliance-focused action. The HR Source team stands ready to support you through the HR Hotline Online or at 800-448-4584.