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American Psychiatric Association expands list of mental disorders


Employers are expected to face increased accommodation requests and litigation due to changes in the American Psychiatric Association's diagnostic manual.

The fifth edition of the Arlington, Va.-based association's Diagnostic and Statistical Manual of Mental Disorders, known as DSM-5, was published in May.

The manual established new categories of disorders, lowered the diagnostic criteria for previously recognized disorders and removed certain exclusions from already recognized disorders, noted Darren Creasy, an associate with law firm Post & Schell P.C. in Philadelphia.

Douglas A. Hass, an associate with Franczek Radelet P.C. in Chicago, said the combination of DSM-5 and the Americans with Disabilities Amendments Act of 2008, which expanded definitions of disability, “means employers would be prudent to assume everything but the most transitory and minor impairments are going to be” considered a disability.

Two of the changes in DSM-5 most frequently cited by legal experts are the addition of “mild neurocognitive disorder” and “social (pragmatic) communication disorder”

Social (pragmatic) communication disorder is defined as a “persistent difficulty with verbal and nonverbal communication that cannot be explained by low cognitive ability,” according to the manual.

A mild neurocognitive disorder “goes beyond normal issues of aging” and “describes a level of cognitive decline that requires compensatory strategies and accommodations to help maintain independence of and perform activities of daily living,” the manual states.


“You can easily come up with a situation” where an employer has performance issues with a worker who then claims he has a mild neurocognitive disorder, said Ryan A. Sobel, a senior associate with Squire Sanders (U.S.) L.L.P. in Cleveland. “So all of a sudden you have an ADA issue,” and potentially an age discrimination issue, which means employers “could potentially be walking into two claims.”

With respect to the communications disorder, said Mr. Sobel, there now is a disorder that explains why an employee does not communicate well, which “injects more uncertainty and, with that uncertainty, more risk” into everyday employment decisions.

Both diagnoses have the potential to lead to more lawsuits, said James J. McDonald Jr., regional managing partner with Fisher & Phillips L.L.P. in Irvine, Calif.

However, he said while employers will have to deal with these issues through reasonable accommodations, “an employer does not have to accommodate an employee by eliminating an essential function of the job.”

For instance, an employee diagnosed with the social communication disorder who is required to communicate with customers as part of his job would not be entitled to an accommodation, Mr. McDonald said.

Nevertheless, engaging in the interactive process under the ADA “can take a significant amount of time,” and increasing the number of employees affected increases the burden on employers, said Joel S. Barras, counsel at Reed Smith L.L.P. in Philadelphia.

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