The American Psychiatric Association has published the latest revision to the Diagnostic Statistical Manual (the “DSM-5”), which could expose employers to greater liability under the Americans with Disabilities Act (“ADA”).
Currently, the ADA requires employers to engage in an interactive process to create reasonable accommodations for otherwise qualified employees with disabilities that substantially impair one or more life activities. The DSM-5 establishes new diagnoses that could constitute disabilities under the ADA if they substantially affect a life activity.
For example, new diagnoses such as Social Anxiety Disorder, Social (Pragmatic) Communication Disorder and Mild Neurocognitive Disorder could have immediate effects on employees in the workplace. 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. Social (Pragmatic) Communication Disorder identifies individuals who have significant problems using verbal and nonverbal communication for social purposes, including using inappropriate responses in conversation. Mild Neurocognitive Disorder is designed to identify early cognitive decline that goes beyond the normal memory issues associated with aging. Taken together, employers should anticipate that certain members of their workforce may soon ask them for accommodations based on these new diagnoses.
Employers should also be aware that criteria for certain diagnoses have expanded, and some diagnoses have changed names. For example, employees may now be diagnosed with Depression immediately following the death of a loved one, an expansion on the previous criteria. Also, the diagnosis of Mental Retardation has officially been changed to Intellectual Disability, and the separate diagnosis of Asperger’s has been collapsed into the broader Autism Spectrum Disorder.
Employers should be ready for these changes and should be prepared to enter into an interactive process to determine whether appropriate accommodations can and should be made when employees request accommodations based on these new criteria or diagnoses. While merely receiving a diagnosis based on the DSM-5 does not automatically mean an employee is disabled under the ADA, employers should not be dismissive if an employee requests an accommodation based on a new diagnosis. Employers should err on the side of caution when employees request accommodation because failure to engage in an interactive process with an otherwise qualified employee can expose employers to significant liability.
It will take the courts and the EEOC some time to establish guidelines and regulations concerning whether the new diagnoses in the DSM-5 constitute disabilities under the ADA and what accommodations may or may not be reasonable. In the meantime, here are some proactive steps employers should take to be prepared for the new diagnoses.
- Train HR personnel on the changes in the DSM-5 to prepare them for employee requests.
- Prepare to engage in the interactive process with employees who request accommodations based on new or updated diagnoses.
- If employees do request an accommodation based on these new or updated diagnoses, review their job descriptions and consider whether effective social communication or interaction with others is an essential function of the position.
- Consider what kinds of accommodations, if any, can be made to permit such employees to substantially perform their job.