Coping with a new set of mental conditions for leave and accommodation requests
 Sept. 27, 2013

On May 18, 2013, the American Psychiatric Association released "DSM 5," which is its revised fifth edition of the Diagnostic and Statistical Manual of Mental Disorders. The DSM serves as the official authority on mental health diagnoses and treatment recommendations. Payment by health care providers is often determined by DSM classifications, so the new version has significant practical importance. The manual is primarily used by psychiatrists and other mental health professionals in diagnosing patients, and its influence extends to the courts and the development of employment law. Notably, with respect to psychiatric disabilities, the EEOC previously cited to the DSM-4 as a relevant tool to be used in determining what qualifies as a mental impairment.

The DSM-5 expands the number of individuals subject to a potential mental disorder diagnosis in two ways. First, it loosens the symptom criteria of existing disorders. Second, it recognizes (some say creates) several new disorders. The DSM-5 categorizes conditions formerly considered a result of normal life events, such as aging and bereavement, into diagnosable mental disorders. This is the first substantive update since 1994 and it will likely increase the number of employees with diagnosed disabilities for which employers will need to consider reasonable accommodations.

Summary of Key DSM-5 Changes

  • Major Depressive Disorder and Bereavement, DSM-5 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, might seek more lengthy bereavement leaves than are currently available following the death of a family member or close friend. This may result in more FMLA-CFRA leave requests or restrictions from health care providers following an individual’s return from a bereavement leave.
  • 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: 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. Social (Pragmatic) Communication Disorder identifies individuals who have significant problems using verbal and nonverbal communication for social purposes, including using inappropriate Responses in conversation. Employees previously thought to be extremely shy or socially Awkward may qualify for this new diagnosis. Restrictions based on this condition fall squarely within the broad definition of "major life activity" under FEHA, and may trigger additional interactive process requirements.
  • Mild Neurocognitive Disorder is designed to identify early cognitive decline that goes beyond the normal memory issues associated with aging. It 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 "concern" the patient and require "greater effort, compensatory strategies, or accommodation." The Age Discrimination in Employment Act and California FEHA both protect employees from discrimination based on age, but neither currently requires employers to accommodate age-related cognitive limitations. The recognition of Mild Neurocognitive Disorder in the DSM-5 could cause employers to grapple with accommodation requests from many older employees, particularly as more baby boomers age.
  • DSM-5 additionally broadens the diagnostic criteria for Post Traumatic Stress Disorder in two key ways. First, 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. Second, 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 and support work restrictions or leave requests.
  • DSM- 5 and Personality Disorders. DSM-5 does not treat personality disorders separately from other mental disorders as did the DSM-4. 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 a focus of diagnosis and treatment but DSM-5’s inclusion 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. Whether this will result in more work restrictions submitted by employees who are facing disciplinary action for behavior issues remains to be seen.

Although DSM-5 cautions that the assignment of a diagnosis does not imply a specific level of impairment or disability, the new and expanded conditions in DSM-5 are likely to increase the number of conditions covered by the ADA and FEHA. In California "disability" is any limitation of a major life activity, with limits defined as "making achievement of that life activity difficult." The FEHA disability regulations that went into effect December 30, 2012 specifically state that "major life activities shall be construed broadly and include physical, mental, and social activities, especially those life activities that affect employability or otherwise present a barrier to employment or advancement." This includes cognitive and neurological functions, concentration, memory, working, engaging in customary social and workplace interactions and related activities.

In addition to the impact of the DSM-5 on interactive processes and reasonable accommodation decisions, employers should anticipate an increase in number and variety of leave requests under the FMLA and California Family Rights Act (CFRA). Under the CFRA, employers are not entitled to ask about a specific diagnosis, so the health care providers need only certify that the "condition" prevents the employee from working or performing workplace tasks and will support leave for an extended period or intermittently to obtain treatment.

Prevention Strategies:
???1 . Inform administrators and HR personnel about the changes in the DSM-5 to prepare them for new requests for accommodation or leave due to an expanded or new diagnosis. Train supervisors to recognize when an employee's communication is actually a request for reasonable accommodation, even if the word "accommodation" is not specifically used. Remind supervisors to contact HR for assistance in addressing these complex issues. (The October hotline webinar will cover this topic).

2. Prepare to engage in the interactive process with employees who request accommodations based on a new or updated set of restrictions. Remember that the employer’s duty to accommodate is a continuing duty. If an accommodation fails or circumstances change, an employer must consider whether any other reasonable accommodations may be available.

3. If employees who are in the process of being disciplined for inappropriate workplace behavior request an accommodation based on a social communication disorder or personality disorder, then 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.

4. Carefully document the employee’s work restrictions and the interactive process undertaken to determine how those restrictions might be accommodated. Focus on the restrictions, not the diagnosis.

5. Be prepared to address extended leave requests and accommodation issues for employees who have experienced the loss of a loved one and are having difficulty returning to their regular activities. This may well extend beyond bereavement to leave to FMLA-CFRA for the employee’s own serious health condition.

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum ???laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

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