New Mental-Health Manual Likely to Impact HR

Wednesday, May 22, 2013
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In psychiatry, unlike other branches of medicine, there is no laboratory test that can confirm the existence of a particular mental disorder. Psychiatrists and other mental health professionals rely on the Diagnostic and Statistical Manual of Mental Disorders, known as "DSM-5" to diagnose patients. The American Psychiatric Association has just released a new fifth edition of the manual and human resources executives should take note. It contains new diagnostic categories not listed in its predecessor and loosens the criteria for some diagnoses which will likely result in more people qualifying for these diagnoses. DSM-5 is likely to impact HR by expanding the number of employees who will qualify as disabled under the Americans with Disabilities Act and be entitled to reasonable accommodation.

While DSM-5 cautions that the assignment of a diagnosis does not imply a specific level of impairment or disability, this distinction has little practical meaning given the enactment of the ADA Amendments Act in 2008 in which Congress decreed that the definition of "disability" for purposes of the ADA is to be construed broadly in favor of coverage. The Equal Employment Opportunity Commission's regulations issued under that law even decreed that certain psychiatric disorders, including Posttraumatic Stress Disorder, Major Depressive Disorder and Bipolar Disorder, will almost always qualify as disabilities. Employees with other diagnosed mental disorders can qualify for the ADA's protection simply by showing that they are limited in their ability to interact with others, one of the "major life activities" recognized under the amended ADA.

New Diagnoses

DSM-5 adds several new diagnoses that employers are likely to find vexing. One is "Social (Pragmatic) Communication Disorder," which 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. While typically diagnosed in childhood it can continue into adulthood. Employees previously thought to be merely shy or socially awkward may qualify for this new diagnosis.

Another new diagnosis is "Binge Eating Disorder," a condition characterized primarily by eating a large amount of food in a short time at least once per week for three months. DSM-5 notes that while most overweight persons do not engage in recurrent binge-eating, Binge Eating Disorder is "reliably associated with overweight and obesity."  Thus, this diagnosis makes it more likely that obesity (at least when precipitated by binge-eating) might finally qualify as a disability under the ADA.

Yet another new diagnosis is "Mild Neurocognitive Disorder."  This 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 require "greater effort, compensatory strategies, or accommodation."  This can probably be found in almost anyone over the age of 50. While accommodations for the effects of aging is not required under the Age Discrimination in Employment Act, this new diagnosis may lead to requests for accommodation by older workers for the ordinary effects of aging.

DSM-5 also adds Pre-Menstrual Dysphoric Disorder as a formal diagnosis. This diagnosis requires the occurrence of symptoms such as mood swings, increased interpersonal conflicts, anxiety or tension, overeating or food cravings, a sense of being overwhelmed, or weight gain, "bloating" or breast tenderness in the week prior to the start of the menstrual cycle. It is possible that women with this condition may seek accommodations or attribute difficulties at work to it.

As a result of these new diagnoses, socially awkward, gluttonous and forgetful employees -- as well as female employees who experience severe PMS symptoms -- may all qualify as disabled under the ADA. Accommodating all of the newly disabled will be challenging but the consequences of not doing so, in terms of legal exposure, may be costly.
Expansion of Existing Diagnoses

DSM-5 also makes it easier to qualify for some diagnoses. For example, the "bereavement exclusion" has been removed from the definition of Major Depressive Disorder. Under earlier editions of the DSM, major depression could not be diagnosed for ordinary bereavement symptoms lasting no more than two months. Under DSM-5, a person having symptoms of depression for longer than two weeks may qualify for a diagnosis of major depression even if those symptoms are the result of bereavement. Employees, therefore, could seek more lengthy bereavement leaves than are currently available as a reasonable accommodation should Major Depressive Disorder be diagnosed following the death of a family member or close friend.

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DSM-5 additionally broadens the diagnostic criteria for PTSD in two key ways. One, it permits a PTSD diagnosis where the person merely learns about a traumatic event, versus the prior requirement that the event actually be witnessed or experienced. Two, it eliminates the prior requirement that the person experience fear, helplessness or horror at the time of the traumatic event. These changes may increase the number of employees who will qualify for a PTSD diagnosis.

Finally, DSM-5 does not treat personality disorders separately from other mental disorders as did its predecessors. These long-term conditions include antisocial, borderline and narcissistic varieties, in which a person exhibits disruptive behavior and often has extreme difficulty relating to others. They were not previously much of a focus of diagnosis and treatment but DSM-5's including them among other mental disorders will likely increase the frequency of their diagnosis. Antisocial personality disorder is characterized by manipulativeness, deceitfulness, lack of empathy and irresponsibility. Borderline personality disorder is marked by severe emotional instability and impulsive behavior. Narcissistic personality disorder is characterized by excessive need for approval, grandiosity, a sense of entitlement and lack of empathy. Mix these with the disturbing trend of ADA case law in some jurisdictions requiring that employers accommodate misconduct related to a disability, and employers may soon find themselves struggling to accommodate these difficult behaviors.

The Daunting Accommodation Challenge

Critics of DSM-5 say the new manual permits more of the ordinary quirks and travails of everyday life to be diagnosed as mental disorders. As a result, requested accommodations by employees are likely to extend beyond mere leaves of absence or adjusted work schedules to permit therapist visits.

Within the next few years, HR professionals could be inundated with requests for job modifications from employees who are simply forgetful or do not communicate well, for more time off for employees with severe PMS or who are grieving the loss of a loved one, and forgiveness of misconduct from the personality disordered. Indeed, DSM-5 is likely to bring some daunting new challenges to HR professionals.

James J. McDonald, Jr., J.D., SPHR, is managing partner of the Irvine, Calif. office of Fisher & Phillips.

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