As if the 2008 amendments to the Americans With Disabilities Act (ADA) didn’t make it difficult enough for employers to determine whether an employee suffers from a disability, the American Psychiatric Association recently added new mental disorders to its Diagnostic and Statistical Manual of Mental Disorders (DSM-5). These newly recognized mental illnesses broaden the scope of disabilities for employees in a universe already substantially broadened by the amendments to the ADA.
Mental illnesses added to the DSM-5 include Mild Neurocognitive Disorder, described as a modest decline in learning or memory; and Social Communication Disorder – what we once might have referred to as shyness. The DSM-5 also removed a bereavement clause, which now allows the period following the death of a loved one to qualify as chronic depression.
Even more alarming is the DSM-5’s assertion that “Internet Use Disorder” may soon be included as an actual mental health disorder.
What This Means For You:
These newly defined mental illnesses make it more difficult for you to determine whether an employee who is shy or forgetful (or who spends all their time surfing the internet instead of working) is going to be considered disabled under the ADA. With their inclusion in the DSM-5, an employee will have a much easier time getting a doctor to diagnose these every-day maladies as mental illnesses than ever before. Of course, this is likely to mean more potential for claims under the ADA – and more potential for leave requests under state and federal leave laws.
An even bigger challenge may be figuring out reasonable accommodations for these employees. Obviously these issues are more complex than the days of investing in an ergonomic chair.
However, don’t lose your marbles over this just yet. Chris Kuczynski, acting associate legal counsel at the EEOC told Employment Law 360 that he “expect[s] the bulk of ADA charges the agency receives going forward to stem from previously recognized conditions.” He notes that there are impairments in the DSM-4 and DSM-5 that “wouldn’t be recognized as a disorder under the ADA” (even with its broadened definition of disability).
Employers should approach these new mental illnesses the same way they have been approaching disabilities in the past. Some things to remember:
- If an employee approaches you with an issue like shyness or forgetfulness, ask if you can help, but do not ask any medical related questions and do not immediately assume that these issues constitute disabilities.
- If an employee asks for an accommodation, ask for a doctor’s note and then begin the interactive process – just as you would normally.
- Determine whether there is an accommodation that would not present an undue burden to the employer and determine whether the employee can still perform the essential functions of the job with or without a reasonable accommodation.
- Visit our Workplace Counseling & Solutions page for more information on working with disability and leave issues.