Q: We're a small company with eight full-time employees. One employee, who's worked for us for several years, has bipolar disorder. This person has been increasingly unable to perform his duties or work as part of a team. Symptoms of the illness combined with the drugs he's taking have made him a burden to the company. Since he's been here, we've been extremely accommodating to his needs. But we've reached the point where we can't do anything more, and he's no longer pulling his weight with the company. Can I fire him, or will I make the company vulnerable to an ADA lawsuit?

A: Yes, and probably not. As you may know, the Americans With Disabilities Act, passed by Congress in 1990, grew out of Title VII of the Civil Right Acts of 1964 and other legislation. The purpose of its "employment" section (Title I) is to guarantee equal employment opportunities to qualified people with disabilities. By passing this act, Congress tried to shift the focus from a person's disability to his or her skills.

At your company's present size, the ADA probably doesn't apply: It applies to private sector employers with 15 or more employees and to all public-sector employers. It wouldn't hurt to check your state law, however, since some states apply ADA requirements to all businesses. Having said that, you should still know the ropes if your company expands.

An employee with a physical or mental condition that limits one or more of his "major life activities" (including seeing, hearing, walking and so on) is considered disabled. An employer is supposed to provide "reasonable accommodations" to allow that employee to do his or her job despite limitations. These accommodations could include physical things such as ramps or other accessibility aids, or work modifications such as longer deadlines or a quiet place to work.

What's a "reasonable accommodation" for one employer, however, may not be for the next. Some factors to consider:

the size and financial resources of the employer
which job functions are essential
the level of impairment of the employee
the number of workplace accommodations needed
how successful the accommodations are in helping the employee do his or her job.

Keep in mind one key concept: A person with or without a disability must be able to perform essential job functions. If they can't, you're entitled to hire someone who can. It sounds as though you've tried to manage your employee's bipolar disorder without much success. Keep a record of things, including:

accommodations made-who was involved, what it cost and the result
work performance-job functions he wasn't fulfilling, efforts to correct problems and meetings with the employee
results of your efforts to intervene
improvements or deterioration in job performance illustrated by specific examples
business policies listed in employee manuals or other documents. These are frequently construed as contracts and should be applied to all employees. Examples: probationary periods, availability of health insurance, severance pay and so on.
written job descriptions for all positions. Outline each job's "essential functions" so everyone knows what the bottom line is for successfully holding that job.

The days of litigation-free business are over. But don't let protective legislation such as the ADA bully you into keeping an employee who can't perform essential job functions. That's a losing proposition for both your company and the employee.

For more information, take a look at these resources:

The Legal Guide for Starting & Running a Small Business, 5th Ed by Fred S. Steingold
Small Business Legal Smarts by Deborah L. Jacobs
155 Legal Dos (and Don'ts) for the Small Business by Paul Adams
Legal Information Institute at Cornell University, http://www.law.cornell.edu
Disability Resources Inc., http://www.disabilityresources.org
Commerce Clearing House Business Owner's Toolkit, http://www.toolkit.cch.com


LearnMore
Check out "High Anxiety" for more information on dealing with the mental health of your employees.


Joan E. Lisante is an attorney and freelance writer who lives in the Washington, DC, area. She writes consumer-related legal features for The Washington Post, the Plain Dealer, the Spokane Spokesman-Review and the Toledo Blade (Ohio). She is also a contributing editor to LawStreet.comand ConsumerAffairs.com.
In her practice, Lisante is counsel to ConsumerAffairs.com and was counsel for Zapnews, a fax-based customized news service for radio stations. Previously, she served as Assistant District Attorney in Queens County, New York, and Deputy District Attorney in Nassau County, New York.


The opinions expressed in this column are those of the author, not of Entrepreneur.com. All answers are intended to be general in nature, without regard to specific geographical areas or circumstances, and should only be relied upon after consulting an appropriate expert, such as an attorney or accountant.