New Psychiatric Disorders May Become Employment Lawyers’ Full Employment Act

 

brain-gearsIn May, the American Psychiatric Association re-leased DSM-5, the 5th edition of its Diagnostic and Statistical Manual of Mental Disorders, which psy-chologists and physicians use to to diagnose and treat patients.

According to attorney Darren Creasy of Post and Schell, DSM-5 expanded previously recognized disorders, and added these conditions as medically-diagnosable disorders:

  • Caffeine-Withdrawal Syndrome – fatigue, head-ache, difficulty focusing,  diuresis (frequent uri-nation), muscle twitching, rambling flow of thought and speech, etc., resulting from over-intake of caffeine;
  • Mild Neurocognitive Disorder – “minor cognitive decline,” beyond “normal” issues of aging, that “concerns” the individual and requires “greater effort, compensatory strategies, or accommodation” to “maintain independence and perform activities of daily living”;
  • Social (Pragmatic) Communication Disorder – a “persistent difficulty with verbal and nonverbal communication that cannot be explained by low cognitive ability” that may cause “inappropriate responses in conversation” and can limit occupational performance;
  • Attenuated Psychosis Syndrome – infrequent (perhaps no more than weekly) onset of mild distress and social dysfunction that, in the patient’s subjective judgment, requires psychotherapeutic treatment.

In other words, DSM-5 has “medicalized the ordinary quirks and travails of everyday life…Social Communication Disorder sure sounds a lot like poor interpersonal skills, and Caffeine-Withdrawal Syndrome sounds a lot like Wednesday afternoon.”  

Thus, DSM-5 may create an increased employment practices liability risk, as any employee disciplined for performance issues could claim to have one of these disorders, and seek accommodation and perhaps file a claim against his or her employer for violating the Americans with Disabilities Act (ADA). The ADA prohibits discrimination against anyone who has a disability, which according to The ADA Amendments Act of 2008 means “…a physical or mental impairment that substantially limits one or more major life activities…(which include) learning, reading, concentrating, thinking, com-municating, and working”. (The amendments broadened the protection provided by the ADA, which had been narrowed by the Supreme Court and the EEOC since it was passed in 1994). 

The ADA doesn’t list the impairments that qualify as a disability, and Creasy points out that “just because a disorder is recognized in the DSM does not mean it automatically meets the definition of “disability” under the ADA…in fact, the EEOC’s interpretive guidance expressly excludes from the definition of “impairment” any “common per-sonality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder”’. However, DSM-5 not only makes it much easier to claim that personality traits such as poor judgment or a quick temper are symptoms of a disorder, i.e., Social Communication Disorder, and thus qualify as a disability, it gives the EEOC grounds to consider the presence of the traits themselves as a disability.

The first claims that cite the new disorders will force the EEOC to issue interpretive guidance as to whether or not they qualify as disabilities; however, attorney Douglas A. Hass of Franczek Radelet P.C. writes “employers would be prudent to assume every-thing but the most transitory and minor impairments will be found to be disabilities.” In other words, DSM-5 will enable increased demands for accommodation, and ADA claims, as employees disciplined for misconduct, poor performance, etc., claim that their behavior was due to a disability, rather than their own shortcomings. 

This is great news for employment lawyers, both plaintiff and defense, but bad news for employers, including law firms.

To protect your firm, develop and adhere to sound procedures for disciplining employ-ees, fully document all disciplinary action, and if an employee asks for an accommo-dation because he or she is disabled and thus protected by the ADA, engage in the interactive process in good faith. Finally, if your firm has Employment Practices Liability Insurance (EPLI) coverage, make sure that it’s broad enough and the limits are high enough to protect your firm. If your firm lacks EPLI coverage, consider buying it, especially if it has 15 or more employees, and is thus subject to the ADA and other federal legislation that protects workers.

I’m tired, finding it hard to focus, and I have to pee like a racehorse, so I’ll end this post now. Clearly, I’m suffering from Caffeine-Withdrawal Syndrome. Maybe I’ll file an ADA claim…


 

 


 
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About Curtis Cooper

Curtis Cooper is principal of Lawyers Insurance Group – Broker For Great Law Firms, which helps attorneys optimize their malpractice coverage. Contact him by phone: (202) 802-6415, or email: ccooper “at” lawyersinsurer.com.

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