New mental disorders could lead to spike in ADA claims

What do forgetfulness, menstrual cramps, and social awkwardness have in common? They're all symptoms of new mental health disorders recognized in the latest version of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which is published by the American Psychiatric Association (APA).

The DSM-5 is widely used by healthcare professionals to assess and diagnose mental disorders. The practical translation: More employees may qualify for protection under the Americans with Disabilities Act (ADA) than ever before, which means employers must be ready to address issues of mental disability accommodation. This article examines the challenges you face in assessing the new mental disorders and determining whether they constitute a mental disability under the ADA for a particular employee.

What is the DSM-5?

One of the biggest challenges facing employers today is the increasing number of lawsuits alleging discrimination based on mental disability. According to the National Alliance on Mental Illness (NAMI), one in four adults — approximately 57.7 million Americans — experience a mental health disorder each year. Major depression is the leading cause of disability for people between the ages of 15 and 44 in the United States.

If you struggle with understanding whether you must accommodate an employee with a mental disorder, you're not alone. The ADA has become a tricky law to navigate, and now that legal maze has become even more complicated.

Unlike other branches of medicine where a laboratory test can be conducted to determine whether a patient suffers from a specific disease (e.g., diabetes), in psychiatry, there's no simple lab test a doctor can perform to confirm the existence of a particular mental disorder. Psychiatrists and other mental health professionals must rely on the DSM-5 to diagnose patients, and inclusion of a disorder in the DSM is often required before it will be covered by health insurance.

Although the DSM-5 cautions that inclusion of a diagnosis in the manual doesn't imply a specific level of impairment or disability, that distinction has little practical meaning given the definition of the term "disability" in the ADA Amendments Act of 2008 (ADAAA), which Congress decreed should be construed broadly in favor of coverage. The fifth edition of the DSM, released last summer, adds new diagnoses and loosens the criteria for other disorders, which will likely result in more people being diagnosed with disabling mental conditions. The additions and changes come with significant controversy and debate.

DSM-5 creates new disorders

At the heart of the debate are a number of new disorders, including:
  • Social (pragmatic) communication disorder (SCD), which applies to people with persistent difficulties in the social use of verbal and nonverbal communications that limit their social relationships or occupational performance. Employees previously thought to be merely shy or socially awkward may now qualify for this new diagnosis.
  • Mild neurocognitive disorder, which is a disorder that "goes beyond normal issues of aging" and "describes a level of cognitive decline that requires . . . strategies and accommodations to help maintain independence and perform activities of daily living." We're going to see this diagnosis with increasing frequency as more and more people are working to an advanced age.
  • Premenstrual dysphoric disorder (PMDD), which describes extreme premenstrual syndrome (PMS) symptoms experienced before most menstrual cycles in a 12-month period. Symptoms include feelings of hopelessness, mood swings, emotional sensitivity, irritability, increased interpersonal conflicts, anxiety, tension, weight gain, or bloating. Symptoms must cause significant distress or interfere with relationships or with school or work (e.g., decreased productivity and efficiency).

As a result of these new diagnoses, forgetful, socially awkward, or female employees who experience severe PMS symptoms may qualify as disabled under the ADAAA. The line between mental conditions that employers must accommodate and conduct that's within the range of normal — and therefore need not be accommodated — has become more blurred.

What does this mean for employers?

The new mental disorders, along with other revisions in the DSM-5, have significant implications for the workplace and pose new challenges for employers. The DSM-5 threatens to make the already complex task of complying with the ADA more difficult by forcing employers to determine whether and how to accommodate employees with the newly recognized mental conditions under the ADAAA, which makes it easier to show that an impairment qualifies as a disability.

For example, a socially awkward employee could claim that she is "regarded as" disabled because she has SCD. Or an employee whose mental acuity is declining for whatever reason may claim that he suffers from mild neurocognitive disorder and request an accommodation for his alleged disability — e.g., more time to perform his job duties. So how should you respond when you're presented with a doctor's note by an employee seeking an accommodation for one of the new mental disorders?

You should continue to do the same things you've always done:
  • Determine whether the mental disorder constitutes a mental disability (which shouldn't require extensive analysis). You have the right to ask for medical documentation if necessary. Don't forget to include the Genetic Information Nondiscrimination Act's (GINA) "safe- harbor" language in your letter requesting medical certification.
  • Make sure there is a nexus between the disability and the need for an accommodation.
  • Review the employee's essential job functions. (Remember, you never need to eliminate an essential job function as part of a reasonable accommodation.)
  • Start the interactive process. Meet and confer with the employee, asking, for example, "How can we help you?"
  • Review possible reasonable accommodations to help the employee perform her current job. If none is available, consider transferring her to a vacant position for which she is qualified.
  • Consult with legal counsel or mental health professionals if necessary.
  • Explore possible defenses to not providing a reasonable accommodation. For example, providing an accommodation would create an undue hardship on your business, or the employee poses a direct threat to himself or others that can't be eliminated by a reasonable accommodation.
  • Document your defenses and the reasonable accommodation process.
Don't forget to mark your interaction with legal counsel "attorney- client privileged communication" to preserve confidential communications. You should refrain from having any written internal conversations that don't involve legal counsel because the attorney- client privilege may not apply to such communications. Read More...