As most employers know, the Americans with Disabilities Act (“ADA”) was significantly amended effective January 1, 2009, to broaden the scope of what constitutes a “disability” under the Act. Historically, the Equal Employment Opportunity Commission looks to the Diagnostic and Statistical Manual (“DSM”), published by the American Psychiatric Association as a diagnostic tool, for guidance on what types of mental impairments might qualify as disabilities under the ADA. The new version of the DSM, DSM V, adds categories for mental illnesses and loosens criteria for previously identified mental illnesses, which may well result in the expansion of the number of an employer’s employees who qualify as being disabled by a mental illness under the ADA. A psychiatric disorder described within DSM V may be a “disability” if not specifically exempted under the ADA and if it significantly limits a major life activity.
New diagnoses under DSM V include the following:
- Social (Pragmatic) Communication Disorder – This disorder is defined as “persistent difficulties in the social use of verbal and nonverbal communications,” which may impair personal relationships and job performance.
- Mild Neurocognitive Disorder – This diagnosis is defined as a “nonspecific cognitive decline which does not interfere with capacity for independence in everyday activities,” i.e., forgetfulness.
- Binge Eating Disorder – while several criteria must be met under DSM V to diagnose this disorder, it basically means eating an amount of food that is definitely larger than most people would eat in a similar period of time and under similar circumstances, is accompanied by a feeling of loss of control, and occurs, on average, at least twice a week for six months.
Given the numerous additions to so called disorders under the most recent version of the DSM and the broader definition of “disability” under the ADA as amended, employers should keep in mind that applicants and employees they don’t consider mentally disabled in the traditional sense may well be disabled and protected by the ADA. Further, employers may well find themselves having to accommodate employees who are simply forgetful or whose social skills are inadequate. Remember, however, that employers do not have a duty to provide reasonable accommodation where it would pose an undue hardship.
Finally, it is always best to consult with counsel when an employee seeks reasonable accommodation but the employer questions whether the employee is actually disabled under the ADA.
This information is general in nature and should not be construed as tax or legal advice.