When the American Psychiatric Association (APA) released its new manual of psychiatric condition diagnoses in May, some employment lawyers sounded an alarm. The so-called DSM-5 added new categories of diagnoses and loosened the criteria for others, raising concerns it could trigger more requests for workplace accommodation.
“The DSM-5 is the ‘bible’ for diagnosing psychiatric or mental disorders, and it adds more than a dozen new diagnoses [to its predecessor, DSM-4],” says Terry Dawson, a partner at Barnes & Thornburg. “In short, the DSM-5 may expand the types of behavior that might be considered a disability under the Americans With Disabilities Act (ADA).”
New diagnoses that could generate requests for workplace accommodation include mild neurocognitive disorder, binge eating disorder and premenstrual dysphoric disorder. Mild neurocognitive disorder afflicts older people and the workplace is aging dramatically; binge eating disorder can result in obesity, which is endemic; and premenstrual dysphoric disorder presumably could affect most women of childbearing age, so the potential for a jump in ADA disability claims should concern employers, some experts say.
“Experience has shown that when a new diagnostic category is introduced, a substantial number of people will be diagnosed with those newly defined conditions,” says James McDonald Jr., a Fisher & Phillips partner. “As people come to work with these new diagnoses and present it as an issue affecting employment, then employers need to be ready to respond.”
Among the new diagnoses problematic for employers is mild neurocognitive disorder, defined as a modest decline in learning and attention or memory that does not affect a person’s ability to live independently but may require “greater effort, compensatory strategies or accommodation.” So an older employee might claim he needs an accommodation for forgetfulness or the inability to learn new skills.
“Just about anyone over age 50 might be eligible for this,” McDonald says. He points out that the Age Discrimination in Employment Act (ADEA) does not require employers to accommodate older workers, so they may turn to the ADA and use a diagnosis of mild neurocognitive disorder to obtain an accommodation.
Another new diagnosis is binge eating disorder, characterized by eating a large amount of food in a short time at least once a week for three months. According to DSM-5, most overweight people do not engage in binge eating, but this disorder is “reliably associated with overweight and obesity.”
Because the Equal Employment Opportunity Commission (EEOC) recognizes only “morbid obesity” as a disability (see “Obesity Action”) a binge eating disorder diagnosis might help overweight employees qualify for accommodation. “Unless garden variety obesity becomes recognized as a disability, one way an employee could back into having obesity qualify for accommodation is by saying he has binge eating disorder, which is a recognized diagnosis under DSM-5,” McDonald says.
Premenstrual dysphoric disorder is a diagnosis for women with symptoms such as mood swings; increased interpersonal conflicts; anxiety or tension; overeating or food cravings; or weight gain, bloating or breast tenderness in the week prior to the start of the menstrual cycle.
“A condition that to date has been considered a fact of life is now characterized as a psychiatric disorder and potentially qualifies anyone diagnosed for accommodation,” McDonald says. That could lead to more requests for leaves of absence and altered work schedules, he adds.
Some attorneys who represent employers think the concern over DSM-5 is an overreaction.
“I don’t think DSM-5 on its own is any reason for having a panic attack,” says Peter Petesch, a Littler Mendelson shareholder.
Petesch says that while disability claims arising from mental and emotional disorders may continue to rise, the primary reason is the 2008 ADA Amendments Act (ADAAA) and the ensuing EEOC guidance. The EEOC defined certain psychiatric conditions, including major depressive disorder, bipolar disorder, schizophrenia and post-traumatic stress disorder as conditions that almost always qualify as disabilities. It also made it easier to claim a psychiatric condition substantially impacts a “major life activity” and therefore is a disability.
“When such things as concentration and thinking are listed as major life activities, there are many more mental disorders or conditions that will rise to the level of a disability,” Petesch says. “The focus is more on the ADAAA. I don’t think you can blame the American Psychiatric Association for any spike in claims of disability.”
Regardless of the impetus for rising claims of mental and emotional disorders, employers should prepare their human resources departments so they appropriately handle resulting accommodation requests.
“Human resources professionals and supervisors should be aware that the DSM-5 may trigger additional requests for accommodation,” says Dawson. “Employers will need to be prepared to engage in the interactive process under the ADA to determine how and whether accommodations can or must be provided to such employees.”
Training should include information on the limits of an employer’s duty to accommodate, adds McDonald. For example, an employer need not eliminate the essential functions of the job or approve an indefinite leave of absence.
“It requires people handling accommodation requests to be up to speed on where the boundaries are,” McDonald says.
Petesch adds that employees with a mental disability are not shielded from conforming with uniformly applied work and behavioral standards.
“If a person isn’t performing, or engages in unacceptable behavior, he doesn’t have to be forgiven,” Petesch says.