Sunday, November 27, 2022

If 65+ Employee Falters, Focus on Job Performance, Not Age

We have an employee who is over the age of 65 and has worked for us for several years, but recently his cognitive skills appear to be diminishing. Can we ask him to take a test for his mental health?

With an aging population and workers who continue to work well past retirement age, the issue of mental competence is becoming a daunting issue for employers to deal with. Signs include missing meetings, forgetting how to do certain tasks, and generalized forgetfulness.

It is inappropriate to ask certain questions—such as “Are you slowing down?” or “Is old age catching up with you?” or “At your age, it is probably difficult to remember things.”

But instead of having the employee tested for mental competence, there are better ways to handle this situation.

Job Performance

First, if there is a suspicion of mental issues, the employer can focus on the job performance issues—approaching the individual and the problems that have come up, such as missed meetings, forgetting how to perform tasks they have done for years, and a decline in performance/lowered production.

Indeed, if there is that suspicion that there are mental issues, the contact should not be in the form of a severe reprimand, but a gentle approach addressing the problems. Specifics are necessary, not a vague reference to unacceptable performance.

Interactive Process

Often, the employee volunteers the issue of the issues noted above, telling the person who has addressed it. It then becomes an Americans with Disabilities Act (ADA) issue, or the California law, the Fair Employment and Housing Act (FEHA), which brings into play the interactive process.

As with other disabilities, the employer representative needs to involve the employee, discuss the problems and show concern, but yet explain the impact on the company. The employer should ask for the employee’s input, noting suggestions and “reasonable accommodations.” Some accommodations can be very simple, and all ideas should be explored.

Some simple tools can help memory loss in this busy world: To-do lists, calendar reminders, even sticky notes to help remind an employee of upcoming events.

The employer should also take copious notes during these communications. These kinds of situations don’t often ripen into a lawsuit, but if one does, the employer should be able to show they worked with the employee.


Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Staff Contact: Dana Leisinger

Dana Leisinger
Dana Leisinger
Dana Leisinger joined the CalChamber in 2000 and currently serves as an HR adviser. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.

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