Mind Games

ADA-related Claims May Rise Due to New Psychiatric Disorders

In the U.S., the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) is the primary authority for the diagnosis and treatment of psychiatric disorders. It is updated periodically to conform to new developments in the field of psychiatry. The most recent edition of the manual, DSM-5, includes several changes that may impact employers’ obligations under the Americans with Disabilities Act (ADA) and similar state laws prohibiting discrimination against — and requiring accommodations for — individuals with disabilities.
These changes include the addition of entirely new diagnostic categories as well as changes in the application of existing diagnostic categories.
What this means is that a broader range of behaviors are now officially considered disorders by the American Psychiatric Assoc., and therefore such behaviors have the potential to be considered ‘disabilities’ as that term is defined under the ADA (a physical or mental impairment that substantially limits one or more major life activities).
Some of the new diagnoses recognized in the DSM-5 include hoarding disorder, excoriation (skin-picking) disorder, gender dysphoria, gambling disorder, tobacco use disorder, mild neurocognitive disorder, premenstrual dysphoric disorder, and social communication disorder.  In addition, there are changes, such as the removal of the ‘bereavement exception’ from depressive disorders, that could have implications for employers. Previously, individuals who experienced short-term depressive symptoms due to the death of a loved one would be excluded from a diagnosis of clinical depression. The DSM-5, however, characterizes bereavement as a severe psychological stressor that can incite a major depressive episode.
With this expansion of psychiatric diagnoses, employers can expect to see an uptick in requests for accommodation due to these sorts of conditions. The Americans with Disabilities Act requires employers to provide reasonable accommodations to individuals who are able to perform the essential functions of their job with or without an accommodation. So, for example, employees experiencing the loss of a loved one may request time off in excess of what’s allowed under the employer’s bereavement policy. Depending on the individual employee’s circumstances, an employer may now be required to provide such leave.
Employees with mild neurocognitive disorder, which is characterized as “a level of cognitive decline that requires compensatory strategies and accommodations to help maintain independence and perform activities of daily living,” may exhibit forgetfulness, difficulty performing job duties, or difficulty learning new skills. What many employers previously would consider grounds for disciplinary action or termination, now may form the basis of a request for accommodation.
Of course, there is a limit on employers’ obligations to provide accommodations — employers are not required to alter or remove essential job functions, nor do they have to provide an accommodation if the employer can show that the accommodation would cause “significant difficulty or expense.” However, employers should be aware of the expanded categories of psychiatric disorders, which may require them to consider accommodations that it previously would not have.
In addition to the increase in accommodation requests, the recent changes to the DSM may also lead to an increase in claims for disability discrimination. In order to successfully claim disability discrimination, an employer must show that he or she is disabled. As more and more behaviors are classified as psychiatric disorders, more employees will fall into the protected class of disabled individuals.
An individual who is disciplined for rude or inappropriate behavior may claim discrimination on the basis of his social-communication disorder, a symptom of which is “problems with inappropriate responses in conversation.” Although employers are not required to overlook inappropriate behavior that is caused by a disability, employers may be faced with increasing requests for accommodation that will assist employees in controlling inappropriate behavior caused by a disability.
Only time will tell what the precise impact of the DSM-5 will be on workplace-accommodation requests and claims for disability discrimination. In the meantime, employers should be aware of the potential issues. When in doubt, employers should consult with labor and employment counsel when faced with requests for reasonable accommodation.

Kimberly Klimczuk is a partner at the management-side labor and employment firm Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected]