August 6, 2013

As most employers know, complying with the Americans with Disabilities Act can be a challenge.  That challenge promises to become more difficult with the release of the latest version of the manual universally recognized to identify and classify mental disorders – the Diagnostic and Statistical Manual of Mental Disorders, known as DSM-5.  Newly identified mental disorders will have major implications in the workplace as employers will have to decide whether and how to accommodate these claims.

As an example, the DSM-5 identifies a new condition called Mild Neurocognitive Disorder, characterized by a modest decline in learning or memory.  While there is no absolute duty to accommodate the cognitive effects of aging, an older employee may claim that his forgetfulness or difficulty learning new responsibilities is caused by Mild Neurocognitive Disorder.

The DSM-5 also identifies Social Communication Disorder as a condition affecting an employee’s ability to communicate in social settings.  Therefore, an employee whose social awkwardness disrupts their performance may claim a disability based on this condition.  These are only two examples of the new mental disorders expected to amplify an employer’s exposure to disability discrimination claims.

Employers, however, must remember that an employee’s inability to perform the essential functions of the job even with a reasonable accommodation is a justifiable reason to end the employment relationship.  Special care must be taken by employers to make sure that job descriptions are comprehensive and accurate.  Indeed, the job description must methodically memorialize the essential functions of the job so it can withstand an employee’s claim that he or she can perform the essential functions of the job.  Now – not later – is the time to review, update and modify job descriptions to prepare for an anticipated increase in disability discrimination claims.