Hunton Employment & Labor Perspectives

For 60 years psychiatrists and other mental health professionals have been using the American Psychiatric Association’s “Diagnostic and Statistical Manual of Mental Disorders” (DSM) as the “bible” for diagnosing mental diseases and disorders.  Health and disability insurance providers  use the DSM in deciding what conditions and treatments to cover, as do government agencies in determining eligibility for benefits and services.  These and other factors make the DSM an unusually powerful document.

The latest DSM revision (the DSM-5) is set for release later this month.   It creates several new mental disorders and broadens the definition of a number of existing ones.  These changes will affect employers in a variety of ways, from expanded protection under the ADA and FMLA to increased benefit costs.  

“Medicalizing” Ordinary Life?

The revision has attracted scathing criticism from a number of experts, including an unlikely one: Dr. Allen Frances, the emeritus chairman of the psychiatry department at the Duke University School of Medicine and the head of the task force that prepared the DSM-4.

 Writing in PsychologyToday.com, Dr. Frances calls the DSM-5 “deeply flawed” and with “many changes that seem clearly unsafe and scientifically unsound.” He fears the new manual will lead to “massive over-diagnosis and harmful over-medication” and complains that the DSM-5 task force is guilty of “medicalizing” the challenges of ordinary life.    

Dr. Frances lists ten “reckless and untested ideas” that he claims will dramatically expand the number of people diagnosed with mental disorders.  For instance, he predicts the DSM-5 will trigger a “fad” of diagnosing Adult Attention Deficit Disorder, leading to “widespread misuse of stimulant drugs for performance enhancement;” that normal grief over the death of a loved one will be mischaracterized as “Major Depressive Disorder;” that aging workers with everyday forgetfulness will be wrongly labeled as suffering from “Minor Neurocognitive Disorder;” and that physicians will obscure the “already fuzzy boundary” between Generalized Anxiety Disorder and the worries of everyday life.  He also notes that DSM-5 has taken overeating and “turned it into a psychiatric illness called Binge Eating Disorder;” he warns of a slippery slope in which careless use of terms such as “behavioral addictions . . . can spread to make a mental disorder out of everything we like to do a lot.”             

Dr. Frances isn’t the only one with serious objections.  A May 7, 2013 article in Time.com reports that the National Institute on Mental Health (a major funder of mental health research) has declined to use the DSM-5’s diagnostic system in its science programs.  Among other concerns, NIMH director Dr. Thomas Insel objects that DSM diagnoses are based on “a consensus about clusters of clinical symptoms” rather than objective laboratory measures.  He says, “patients with mental disorders deserve better.”

Despite the criticism, the APA shows no sign of backing down.   DSM-5 goes on sale on May 27 and is already available for pre-order on Amazon.com. 

Implications for Employers:  Some Early Predictions

Here are a few predictions about what the new DSM-5 will mean for employers:

• The EEOC will embrace the DSM-5’s expansive view of mental disorders and treat most of its newly-established conditions as disabilities for purposes of the Americans with Disabilities Act.
• EEOC will re-evaluate its longstanding ADA interpretive guidance on the definition of “physical or mental impairment” (see Appendix to 29 CFR §1630.2(h)), which states that an “impairment” does not include “common personality traits such as poor judgment or a quick temper where these are not symptoms of a mental or psychological disorder.”)  The agency will more closely scrutinize disciplinary decisions and seek to force employers to reasonably accommodate allegedly disabled employees whose poor performance and conduct are more likely attributable to ordinary characteristics such as lack of motivation, incompetence,  unwillingness to follow company rules, and inability to get along with supervisors and coworkers. 
• Requests for time off that employers now routinely deny will require more scrutiny to determine if there is ADA or FMLA protection, as primary care physicians (who already prescribe most psychiatric medications) fall in line with DSM-5’s expansive diagnostic criteria. 
• Employer costs for benefits such as short-term disability will continue to increase, as will workers’ compensation costs in states with expansive definitions of what constitutes an occupational injury or disease.
• Employees suing their former employer for infliction of emotional distress will find it easier to obtain a medical diagnosis to support their claim.
• Daubert motions (seeking to exclude psychiatric testimony) will increase in employment cases, based on the argument that the DSM-5 is not generally accepted in the psychiatric community and/or that important parts of it are “scientifically unsound,” as Dr. Frances says.