California HR

Mental disorders: How will DSM-5 affect California employers?

What is DSM-5? It is the new edition of the Diagnostic and Statistical Manual of Mental Disorders, released by the American Psychiatric Association on May 18, 2013. This is the first substantial update to the DSM since 1994, and it reorganizes the classification system and changes the names of some disorders to simplify diagnostics for practitioners. The DSM is primarily used by psychiatrists and other mental health professionals in diagnosing patients, but its influence extends to the courts and the development of employment law.

This is especially true for California employers. California employers already have to balance their actions to ensure compliance with both the ADA and the Fair Employment and Housing Act (FEHA). DSM-5 adds another layer because it includes several diagnostic categories not present in past editions. This means that more employees may now qualify for protection under the ADA/FEHA than ever before, and that means you must be at the ready to address issues of reasonable accommodation, or in some cases extended leaves of absence.

"Although the issue of reasonably accommodating employees with mental disorders or emotional conditions is not new, the impact of the DSM-5 (The American Psychiatric Association's Diagnostic and Statistical Manual of mental disorders) on accommodations and leave is new." Patricia Eyres explained in a recent CER webinar. More of the new diagnoses will be covered disabilities, which affect your return-to-work policies and your reasonable accommodation processes.

Employers covered by FMLA/CFRA may also see an increase in requests for leave on an intermittent basis, with new diagnoses and treatments. This is because general practitioners also rely on the DSM-5 for guidance.

DSM-5: An increase in compliance requirements?

One of the important takeaways of the release of DSM-5 is that the new, broader definitions of some impairments may mean more of them are classed as disabilities, thus triggering more ADA and FEHA compliance needs.

Although DSM-5 cautions that the assignment of a diagnosis does not imply a specific level of impairment or disability, the new and expanded conditions in DSM-5 are likely to increase the number of conditions covered by the ADA and FEHA.

This is especially relevant in California, since in California "disability" is any limitation of a major life activity. The word "limits" is defined as "making achievement of that life activity difficult." This is an even broader standard than the federal standard under the ADA.

In fact, the FEHA disability regulations that went into effect December 30, 2012, specifically state that "major life activities shall be construed broadly and include physical, mental, and social activities, especially those life activities that affect employability or otherwise present a barrier to employment or advancement." This includes cognitive and neurological functions, concentration, memory, working, engaging in customary social and workplace interactions and related activities.

"It is a very broad definition already, and the impact of the DSM-5 will add to what we anticipate will be increased numbers of opportunities for you (because you have a compliance requirement) to trigger an interactive process." Eyres explained.

Let's take a look at some of the predictions of what may change as a result of DSM-5.

DSM-5: Predictions on how it could affect employers

DSM-5 has spurred controversial predictions and commentary. In fact, the National Institute of Mental Health has withdrawn its support for DSM-5, and an article on psychologytoday.com predicted:

  • A drastic increase in people claiming to suffer from ADD
  • That normal grief over a loved one's death may automatically be classified as a major depressive disorder
  • Older workers suffering from normal forgetfulness will be identified as suffering from "minor neuro-cognitive disorder"
  • Other day-to-day behaviors that will suddenly fall into some psychiatric problem category

It remains to be seen whether these predictions will come true. Another dire fear is that the EEOC may re-evaluate its longstanding ADA interpretive guidance on the definition of a "physical or mental impairment." The current guidance states that an "impairment" does not include "common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder." Since more disorders are now listed, and there is a lower threshold for others to be diagnosed, this could change.

Here are some other DSM-5 predictions for HR to consider:

  • Employers may see more requests for time off for anyone subject to FMLA/CFRA.
  • Employers may see more reasonable accommodation requests under ADA/FEHA—especially for employers or employees who are not subject to FMLA/CFRA. This is because it may now become a reasonable accommodation to provide leave anyway.
  • The EEOC and DFEH may more closely scrutinize disciplinary decisions and seek to force employers to reasonably accommodate allegedly disabled employees whose poor performance and conduct are more likely attributable to ordinary characteristics such as lack of motivation, incompetence, unwillingness to follow company rules, and inability to get along with supervisors and coworkers.
  • Requests for time off that employers now routinely deny will require more scrutiny to determine if there is ADA/FEHA or FMLA/CFRA protection, as primary care physicians adopt DSM-5's expansive diagnostic criteria.
  • Employer costs for short-term disability benefits will continue to increase.
  • Workers' compensation costs will rise in California, which already has expansive definitions of what constitutes an occupational injury or disease. Expect more PTSD claims and issues relating to cumulative trauma involving mental health disorders, such as depression. This is because the definition of PTSD has changed in the new DSM-5.

The above information is excerpted from the webinar "DSM-5 Standards and ADA/FEHA: Accommodation and Compliance Obligations for New Mental Disorders in California." To register for a future webinar, visit CER webinars.

Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers' comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.