Psychiatric Disabilities Under the ADA: Proposed Changes to Diagnostic Tool May Result in a Broader Definition of "Disability"

I just read a very interesting article titled "Furor over DSM-V."  Apparently, the Diagnostic and Statistical Manual (DSM), published by the American Psychiatric Association as a diagnostic tool), is in the process of being revised (for the fifth time, hence "V").  Details of the proposed changes were recently released and, if implemented in their current form, may significantly impact employers' obligation to accommodate disabilities under the Americans with Disabilities Act.

The ADA requires an employer to provide reasonable accommodation to an employee or applicant whose impairment meets the statutory definition of "disability," unless doing so would cause "undue hardship" to the employer.  When determining whether a "mental impairment" qualifies as a "disability" under the ADA, the Equal Employment Opportunity Commission looks to the DSM for direction. Specifically, in enforcement guidance on psychiatric disabilities under the ADA, published in 1997, the EEOC refers to DSM-IV (the then-current version of DSM) as a useful resource for identifying "mental impairments" under the ADA, which has been "recognized as an important reference by courts and is widely used by American mental health professionals for diagnostic and insurance reimbursement purposes."  Under the ADA, a psychiatric disorder described within DSM may be a "disability" if not specifically exempted and if it significantly limits a major life activity.  

Proposed changes to the DSM includes as disorders a number of potentially work-related conditions not included in DSM-IV, such as: social communication disorder (low social communication abilities resulting in functional limitations in occupational performance); callous and unemotional specifier for conduct disorder (does not show concern about poor/problematic performance at work); and mild neurocognitive disorder (minor cognitive decline from a previous level of performance).  Other changes under consideration include the classification of "apathy syndrome," "internet addiction disorder," and "seasonal affective disorder" as psychiatric disorders.

An open letter signed by nearly 6000 people challenges many of the proposed changes.  Of particular relevance to claims under the ADA is the letter's challenge to the task force's proposal to lower diagnostic thresholds, which could increase the number of people who qualify for a diagnosis and may lead to classifying "transitive, even normative distress" (such as bereavement) as an impairment, leading to over-diagnosis and the triggering of "false-positive epidemics." 

With implementation of the Americans with Disabilities Act Amendments Act of 2008, the interpretation of "disability" became extraordinarily broad.  If the proposed changes to DSM are incorporated into DSM-V, the number of applicants and employees who may be considered "disabled" under the ADA will expand even further. 

Visit Employment Matters for additional insights from Martha J. Zackin of Mintz Levin's Boston office.

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