Recently, the American Psychiatric Association published its Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5). DSM-5 includes several diagnostic categories not present in past editions. In practice, this may mean that more employees may now qualify for protection under the ADA than ever before, and that means you must be at the ready to address issues of accommodation.
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Understanding some of the new definitions offered in DSM-5 can be beneficial for HR professionals. However, this information should be used solely to help understand the changing landscape, not to make diagnoses or assumptions about employees.
“We’re not asking, nor do we want, nor is it desirable for HR professionals to wear a clinician’s hat. You’re focusing on: once we have some statement from the employee and/or their healthcare provider that they need a reasonable accommodation—we’re looking at what their functional capacity, functional limitations, and work restrictions [are]. What we do want you to see though is that you’re going to get more of those requests because of the breadth of those definitions, so we want you to know what they are.” Patricia Eyres told us in a recent BLR webinar.
Here are some examples of the expanded and new definitions that may affect the workplace.
New DSM-5 Definitions That Affect the Workplace
Here are a couple of the DSM-5 definitions involving cognitive and memory lapses that may affect performance or interaction in the workplace:
- Intellectual Disabilities. One of the major modifications in the DSM-5 is a change from the previously categorized disorder of “mental retardation” to the diagnosis of “intellectual developmental disorder.” This coincides with the comprehensive terminology change in California statutes from “mental retardation” to “intellectual disability.”
- Mild Neurocognitive Disorder<.b>. Also known as Minor Neurocognitive Disorder, this definition is designed to identify early cognitive decline that goes beyond the normal memory issues associated with aging. It describes a modest decline in learning, attention, or memory not associated with another mental disorder that does not interfere with the person’s ability to live independently but which may “concern” the patient and require “greater effort, compensatory strategies, or accommodation.”
The second item has caused some concern because it is feared that something as simple as forgetfulness could become a diagnosed condition and eventually a covered disability, especially since this condition is not just associated with age. However, remember that the only way this type of diagnosis is made is if the patient sees a healthcare provider with concerns.
New DSM-5 Definitions That Affect the Workplace: Social Anxiety Disorders
Another area of concern is the expanded definition of social anxiety disorder, and how this might impact employers.
Social anxiety disorder affects individuals who suffer from significant distress or anxiety that interferes with their ordinary routine in a variety of social situations, including the workplace.
“This is another one that has created a fair amount of controversy. I think we do have people in the workplace who might fall well within this definition. Whether it’s going to impact them and they’re going to ask for reasonable accommodations will remain to be seen.” Eyres explained.
For example, some people become very nervous or anxious for days in advance of activities that may be part of their essential job functions, such as social client interactions.
“If you have someone who gets sick every time they are told they are going to have to take a client or a prospect to dinner (or a prospective new employee), or go to some kind of social gathering—if it’s an essential function of the job, it’s going to be an issue in a reasonable accommodation analysis.” Eyres told us.
Another expanded definition that may impact employers is the one for Social (Pragmatic) Communication Disorder. This condition describes persons whose communication skills are impaired but who do not qualify for an autism diagnosis. It applies to persons with “persistent difficulties in the social use of verbal and nonverbal communications” that limit social relationships or occupational performance.
Social (Pragmatic) Communication Disorder identifies individuals who have significant problems using verbal and nonverbal communication for social purposes, including using inappropriate responses in conversation. Restrictions based on this condition fall squarely within the broad definition of “major life activity” under ADAAA, and may trigger additional interactive process requirements.
For more information on how the expanded DSM-5 definitions may affect the workplace, order the webinar recording of "DSM-5 Standards and the ADA: Accommodation and Compliance Obligations for New Mental Disorders." To register for a future webinar, visit http://store.blr.com/events/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.
One question is how willing physicians will be to certify some of these conditions.