Dealing with Dementia in the Workplace
In the last couple of years, I have watched both my parents deal with dementia: first, my father who died last year after dealing with Lewy body dementia in the last years of his life, and more recently, my mother, who is currently living in “memory care” assisted living because of Parkinson’s-related dementia. While it has been difficult watching my once very bright parents deal with severe cognitive declines, I recognize that they were both fortunate in that they did not begin to suffer from dementia until they were well into their eighties.
But what happens when someone begins to experience cognitive decline while they are still working? As the workforce ages, with many talented men and women in their sixties and seventies who bring years of experience to their jobs, employers are increasingly having to deal with a much smaller group of older employees who have not been so lucky. While only a small percentage of sixty- and early-seventy-year-olds suffer from Alzheimer’s disease or other forms of dementia, a larger number of these older workers may suffer from the mild cognitive impairment that often precedes these more serious forms of dementia. How should an employer respond when a once valuable employee begins making many serious mistakes that cause coworkers to question his perception or decision-making skills? This can be especially important when the employee has a high level of responsibility in the organization—safety manager, auditor comptroller, director of technology, or attorney—where the employee’s diminished capacity could create real risks for the company.
Generally speaking, you should never make any inquiries into an employee’s health or condition. We tell our clients to focus only the employee’s declining performance as in, “We have noticed that you are making far too many mistakes …” and leave it to the employee—if the employee so chooses—to identify any disability or medical condition that may be causing the performance problems. But an employee with mild cognitive impairment who has chosen to continue to work may be the least likely to acknowledge the problem. Nor is this the conversation that most supervisors or human resources managers want to initiate. Confronting a once brilliant colleague with your concerns that they may be cognitively impaired is certainly not an easy thing to do.
While I cannot offer a simple script for handling these situations, having been down this road a few times with clients, I can share my experience:
- Plan and think about any meeting before you have it. Who is (or are) the best person (people) to talk with the employee? Make sure it is someone who has the sensitivity to handle this type of situation. Once you decide to meet with the employee, it is important that you be honest about the changes observed and explain why you are concerned. This is especially important when dealing with employees who owe a special duty to the company. They need to understand the risks that their lapses may create for the company.
- When you meet with the employee, give the employee an opportunity to acknowledge the changes and see if they share any of your concerns. Often, the best way to get someone to acknowledge a problem is to give them time to do so. Don’t rush the meeting, and resist the urge to fill any silences. Sometimes, if you give people some time to respond to your questions, they will.
- If the employee shows some awareness of the problem, ask if the employee has talked to this family physician or spouse or significant other about this.
- Come prepared to offer the employee support. Whoever handles the meeting should be well-versed in the company’s benefits and this particular employee’s entitlement to those benefits: Is there an Employee Assistance Program? How much paid leave does the employee have accrued? How does the disability plan work? What about retiree benefits?
- Learn something about dementia and some of the progress that has been made in treating it before meeting with the employee. While I would advise against saying you think that the employee is suffering from mild cognitive impairment, or even suggesting a diagnosis, if the employee raises the issue or even acknowledges that they have been diagnosed with mild cognitive impairment, showing that you have some knowledge about the disease may be greatly appreciated, although don’t claim to be an expert if you are not.
- Depending on how the conversation develops, you may want to consider asking the employee if you can involve the employee’s spouse or significant other in the discussion of their performance problems, especially if the employee acknowledges the problem. While this approach is not typical for any litigation-averse lawyer to suggest (proposing that a spouse come to a meeting at work), this is one of those unique situations where the standard rules may not apply.
This isn’t a checklist for avoiding litigation. Ultimately, your concern should be the employee’s well-being and, if it is, I don’t think you will need to worry about litigation.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.