If you're a boss and an employee tells you they have dementia or Alzheimer's disease, will you let them keep their current job?
That question — and an employer answering "no" to it — are at the center of a new lawsuit against a Connecticut university.
Gary Reho says he was fired from his job as an athletic center director in violation of federal disability rights law after he told the school he had been diagnosed with the onset of dementia.
Reho's federal suit against Sacred Heart University is one of the few such known cases in the United States.
But more like it could be coming soon against companies and other employers as the population ages, people work longer and some of them are diagnosed with degenerative neurological conditions related to aging.
"I wouldn't call it a common claim, but I do think it is becoming more common," said David Fram, director of ADA and equal employment opportunity services at the National Employment Law Institute. "I think we will see more of these mental health cases coming up in these workplaces."
Fram was aware of just one other similar Americans with Disabilities Act lawsuit to Reho's, involving the chief psychologist of an Illinois hospital who was fired after he was diagnosed with a deterioration of his short-term memory that allegedly made him unfit for duty.
Fram said that unlike physical disabilities, where a person's difficulty in doing a certain job may be visually obvious, mental health cases like Reho's can be trickier for employers to deal with — and to make the right decision to avoid being sued for violating the ADA. The act provides rights and protections to people with both physical and mental disabilities.
"It gets hard when it's a hidden condition, when you can't really tell easily whether the person has the ability to do the job or not," Fram said.
He also said, "I do think there's going to be a learning curve for employers. Employers haven't had to deal with these issues in the past."
Reho's case, like other ADA claims, hinges on two questions: whether his mental condition makes him disabled, and then whether he is qualified to still do the job given the limitations from the disability, Fram said.
Reho's lawyer, Michael Satti, told CNBC that his client "absolutely" could do his job today.
"This guy is as fit as a fiddle," Satti said. "He's not walking around drooling."
But months after Reho told Sacred Heart about his dementia diagnosis, "he was offered the option of applying for either short-term disability, or no longer having his position," Satti said.
Reho's reaction, Satti said, was "'I'm not going to do it.'" He then was fired.
"I think as long as they're able to do the job, they should be able to work," Satti said of Reho and other people with mental disabilities. The suit that he filed for Reho accuses the university of failing "to make reasonable accommodation" for him and his job responsibilities in accordance with the ADA.
Sacred Heart, in a statement emailed to CNBC, said, "We are confident that when the facts come out during the discovery process that Mr. Reho's claims will be deemed unfounded. Because of the ongoing litigation, we cannot provide any additional information at this time."
Reho, 63, became the first coach of Sacred Heart's football team after he was hired in 1990, and he went on to lead the Fairfield, Connecticut, school into the NCAA's Division 1, the Connecticut Post newspaper noted in a story about the suit.
Reho later became director of Sacred Heart's Pitt Health and Recreation Center, where he served from 1997 through 2015, and was most recently earning about $90,000 annually.
According to his federal suit, Reho "never" received either verbal or written warnings, disciplinary actions or reprimands during his quarter-century of employment at Sacred Heart.
The suit says that he underwent a neurological consult examination in December 2014, after having several cataract surgeries. The exam ended with Reho being diagnosed with an impression of "posterior cortical atrophy type of Major Neurocognitive Disorder."
"In other words, onset of Dementia," the suit said.
But Reho's neuropsychologist, Dr. Christine McCarthy, wrote after the exam: "Mr. Reho's cognitive functioning and emotional well-being will be improved by returning to work," the suit noted.
Reho told his superiors at Sacred Heart about the diagnosis, with McCarthy's report, in January 2015, "which included Dr. McCarthy's recommended accommodation and modifications to the Plaintiff's job duties," according to the lawsuit.
The suit goes on to note that over the next several months there was a series of communications between Sacred Heart's human resources department and Reho's doctors, which included the question of whether Reho could perform "the essential functions" of his job based on how the university described that position.
Those communications include a June 2015 letter from McCarthy to the head of the university's HR department. In that letter, the doctor takes issue with the university claiming that she had previously said that she believed Reho "could not perform the essential functions of his job" and that "the best course of action was to move Mr. Reho to short-term disability at the present time."
McCarthy said that the university's characterization of her opinion is "an entirely incorrect and inaccurate account of the overall gist of the professional opinions that I related." The doctor also said that the university's proposal to move Reho to short-term disability could well deprive him of his rights and protections under the ADA.
Also, removing Reho from his job would deprive him "of the cognitive stimulation and the social engagement that are among the practices that have proven efficacy in slowing the progression of neurodegenerative disease processes," she said.
Dr. Philip Barasch, who was retained to conduct an independent medical examination of Reho during this time, wrote that Reho "has a dementing illness, which has resulted in significant cognitive impairments."
Barasch wrote that given those impairments, and after a basic neurological examination he gave Reho, he thought it was "unlikely" Reho would be able to adequately perform tasks outlined in his job description. But he noted "this is somewhat dependent on what assistance and accommodations the university is willing to offer."
After Reho rejected Sacred Heart's suggestion that he go on short-term disability, he was fired on Aug. 27, 2015, in a letter from human resources that said his job as director of the recreation center "is no longer a viable position."
Despite that dismissal, Reho was hired this past summer to provide martial arts instruction to a two-month-long program for children conducted at Sacred Heart University, according to his lawyer Satti. But, at some point, Sacred Heart stopped paying Reho for that work — shorting him about 20 percent or so of what he was owed, Satti said.
Sacred Heart did not comment on that claim.
Fram, of the National Employment Law Institute, said the ADA "doesn't list conditions" including dementia and Alzheimer's explicitly as covered conditions. But he added that both of them could fall under the ADA's standard of a disability being "a physical or mental impairment that significantly limits life's activities."
"The harder question for that person: Is he qualified for the particular job, given the disability, or given the dementia," Fram said.
He said the court that hears Reho's suit will have to consider "the really critical question... of what, really, are the essential functions of the job," to determine whether Reho could perform them, despite his condition.
"If it's an essential function, and he can't do them, then he's not qualified," Fram said.
Correction: The ADA provides rights and protections to people with both physical and mental disabilities. An earlier version misstated these facts.