In late 2017, just before his death, news of Gary Ott’s diagnosis with Alzheimer’s disease was finally made public. But Ott had noticed symptoms of the disease as early as 2013, and friends and employees began to notice changes in his behavior by 2015. As the illness progressed, a public battle played out over who would be given legal guardianship of Ott—and how the former Salt Lake County Recorder was allowed to remain in office for so long after employees and other government officials began to notice red flags in his behavior.

Ott’s situation was incredibly complicated, with some employees trying to cover for his increasing inability to perform his duties, and a bitter fight between his family and his domestic partner over his guardianship. But the situation raises questions for private-sector organizations as well. What is the compassionate, prudent and legally sound response when supervisors and co-workers begin to notice troubling changes in an employee’s behavior?

In the workplace

Not all situations are so high profile. Roberta (not her real name) worked as an attendant at a gas station for more than a decade. The station was part of a grocery chain. Many store customers made a habit of stopping there for gas when shopping, drawn by Roberta’s friendly, efficient service and ability to remember customer’s names.

But as she aged over the years, Roberta began changing. She no longer remembered the names of regulars. She was slower, sometimes inaccurate when counting money. Her smiles stopped. Roberta acted stressed out, sometimes frantically confused. It escalated to the point where she needed to call for help for simple tasks like turning on the pumps or entering gas discount coupons offered by the supermarket. One day, Roberta was gone.

Despite Roberta’s apparent decline, it’s likely that the decision to dismiss her was painful for everyone involved. It’s a hard decision to let go of someone who has been loyal and part of the business family for many years. But small businesses rarely have the slack to absorb an employee who can no longer perform their work.

It’s helpful to start addressing the situation when it becomes obvious, rather than waiting until it has a financial impact on the company or begins to overly burden the employee’s co-workers. One good way to begin is by mentioning the possibility of retirement. Another resolution is to cut back on the hours of a problematic employee, while finding another employee to fill those vacated hours.

If termination starts to look like the best answer, an employer should be careful to document the reasons for the dismissal to avoid a costly age discrimination lawsuit.

Documenting decline

Lauren Scholnick is an employment lawyer at the firm Strindberg & Scholnick LLC in Salt Lake City. She advises protective documentation and periodic employee evaluations as a way to avoid legal pitfalls in cases of employee dementia.

“The best way that any employer can defend against a discrimination suit is to be totally up front about any employment issues,” Scholnick says. “Be direct, and make sure those evaluations are objective and not subjective. Give them a chance to improve by providing written notice of what they have to do to improve.”

When the problem with an employee indicates oncoming dementia, the evaluation must point out occurrences that show this. The employer should also privately keep explicit notes, describing each incident and the date it happened, even if these records are not shown to the employee. While a flaw like consistently arriving late to work would be grounds for dismissal from any job, the employer’s notes should concentrate more specifically on those problems which indicate mental decline: loss of memory, confusion and mistakes in job performance—symptoms which are more specific to possible dementia, rather than just an employee screwing up.

Any employee, even disabled employees, can be fired if they are not able to do the essential functions of their job. If that inability is shown by a series of escalating evaluation warnings and there is no change in behavior, the employee can be let go, and they will have no recourse.

“Many employers, especially large employers, have progressive discipline type policies where they first tell the person that there’s something wrong and describe the issue. Then there’s a written warning, with a performance improvement plan. Then a warning that you will fire them if they can’t manage to improve based on those escalations of discipline,” explains Scholnick.

This is good advice for smaller employers as well. The employee should also be asked to sign the form, proving that they received it and understood what they were being told, even if they didn’t agree with it. The form should be clearly dated, and a copy given to the employee.

The evaluation documentation will be proof, if it ever becomes necessary, that the employee is not being let go because of age, but because they are not able to, or are not performing their work.

“Evaluate them as time goes on,” says Scholnick, “and then if they don’t improve, getting rid of them for performance issues is not a problem."

Early onset dementia

While rare, some people may evidence a condition called “early onset dementia,” which may afflict people as young as 40 or 50. One thing to remember is that Alzheimer’s disease is not the only form of dementia. There are many other kinds of dementia, though Alzheimer’s is the most common. Business owners should never assume that loss of memory and confusion is due only to Alzheimer’s disease and that it will last for the rest of the employee’s life. Sometimes mental decline can be due to a certain medication or to depression or an infection. It may be a temporary situation that will eventually go away. If a business owner has a good personal relationship with the employee, it might be a good idea to initiate a discussion about the subject. The employee may not be aware of the change in their mental function.

The hardest part

It will always be a hard decision to measure the continued success of one’s business against loyalty to a long-time employee. After a period of observing and documenting declining behavior, the only resolution is to acknowledge the difficulty of making the decision, and then make the necessary choice.

Wina Sturgeon is a nationally syndicated weekly columnist for Chicago Tribune Syndication and a stringer for the New York Times. She tries to be as active as possible, because recent research shows that consistent activity helps the brain.