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Accommodate what? The newest potential ADA headaches

September 19, 2013

Article courtesy of SBAM Approved Partner ASE

By Kristin Cifolelli  

In May, 2013 the American Psychiatric Association (APA) published its fifth edition of the Diagnostic and Statistical Manual of Mental Disorders or “DSM-5,” which is often considered the bible for diagnosing mental conditions and disorders. So why should this be of relevance to HR professionals?  Within that new release (its first update since 1994) the DSM identifies a number of new diagnoses and expansions of diagnoses, including the following:

  • Social Anxiety Disorder – affects individuals who suffer from significant distress or anxiety that interferes with their ordinary routine in a variety of social situations
  • Social (Pragmatic) Communication Disorder – identifies individuals who have significant problems using verbal and non-verbal communication for social purposes, including using inappropriate responses in conversation.
  • Mild Neurocognitive Disorder – identifies early cognitive decline that goes beyond the normal amount associated with aging.  This may impact employers in how they deal with older workers.

And while it hasn’t officially been listed as a new diagnosis, the DSM-5 has also identified Internet Addiction Disorder as one for further study and potential inclusion in the next revision of the DSM.   

HR professionals should sit up and take notice that all of these new and expanded diagnoses have the potential to increase the number of conditions covered by the ADA.  This could lead to increased numbers of requests for accommodations under the ADA as well as applications for disability benefits.

Another important impact is that while the DSM indicates in its own text that it is designed to be used in clinical, educational and research settings (i.e., not mentioned are workplace settings), the DSM has also had an important place within the court systems for decision-making purposes. A 2011 paper by Dr. Ralph Slovenko, a professor of of law and psychiatry at Wayne State University, found that the DSM had been cited in some 5,500 court opinions and 320 pieces of legislation.  Therefore, diagnoses in the DSM can, and do, come back to haunt employers in employment-related litigation. They also create new areas for the courts and the government to mandate additional legislation that will impact employers.

So is there any good news coming out of this? Acting Associate Legal Counsel for the EEOC Chris Kuczynski has stated, “If there is something that is recognized as an impairment that previously wouldn’t have been recognized, that doesn’t mean that the person is either protected or that unlawful discrimination occurred. It’s just a small piece of the puzzle. There are things in the DSM-IV that wouldn’t necessarily qualify. It’s a piece of evidence, it’s relevant, but not necessarily dispositive.”

In the meantime, what should employers and HR professionals be doing in addition to buying that extra-large bottle of Tylenol?
 
First, ensure your line supervisors and managers are taught to listen to their employee’s issues and aren’t quick to summarily dismiss complaints or discipline someone who has indicated that they have a medical condition. Make sure these supervisors are appropriately trained to recognize issues that could potential qualify under ADA and how important it is to refer those issues directly to HR to investigate. 

Secondly, ensure that your Human Resource professionals understand the interactive process under the ADA.  Employers are required to evaluate requests for accommodation by reviewing the essential job duties of the position and conducting a careful analysis of the requested accommodation to determine if changes or modifications to the job will allow the employee to perform the essential job duties.  Even if an employee makes a request for accommodation, it does not mean that he or she is entitled to that accommodation.  An employer may determine that providing the requested accommodation creates an undue hardship when the cost of providing it has a significant financial impact on the organization or is overly disruptive.

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