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December 9, 2013

The New DSM-5 and its Impact on Employers

Author Hendrik Nieuwland

The latest edition of the “Bible” on psychological disorders and mental disabilities was released by the American Psychiatric Association in May 2013. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (“DSM-V”), like its predecessor, will serve as the authoritative text when it comes to diagnosing psychological injuries. Employers need to be aware of a number of important changes in the most recent release, particularly, the addition of new diagnoses.
How Does this Impact Employers?
The addition of several conditions to the DSM-V will serve to broaden an employer’s duty to accommodate persons with disabilities under the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”), the Ontario Human Rights Code (the “Code”) and Canadian Human Rights Act. If this duty is not properly understood, it could result in significant costs to an employer as tribunals and the courts are increasingly awarding higher damages for human rights violations (see our October 2013 Snapshot on the Wilson v. Solis Mexican Foods case).
The new diagnoses could also mean increased insurance costs for employers as employees try to bring themselves within the scope of these “new” disabilities for claims under workers’ compensation schemes and group benefit policies.
What Needs to be Accommodated?
Most employers today understand that they have a duty to accommodate those with physical disabilities, for example, by providing modified light-lifting duties to a worker with back problems. But, according to the DSM-V, employers will now also have to accommodate those with:
• premenstrual dysphoric disorder;
• hoarding disorder;
• skin-picking disorder;
• gambling disorder;
• caffeine withdrawal; and
• cannabis withdrawal.
While the process and criteria for diagnosing these conditions are beyond the scope of this article, the mere fact that they are included in the DSM-V signals that these claims will be treated in the same fashion as all disabilities under human rights legislation and group insurance schemes.
Another change that demands attention is the elimination of the “bereavement exclusion” for major depressive disorders. In the DSM-IV, individuals within the first two months following the death of a loved one could not be diagnosed with major depression, as depression was to be distinguished from normal grieving. This has been removed in the DSM-V meaning a symptomatic person can be diagnosed with a major depressive disorder after only two weeks.
What Can an Employer Do?
The release of the DSM-V should signal to employers that now is an opportune time to review their obligations under human rights legislation and to implement proactive workplace policies that address these obligations.
First, employers need to be aware that under the Code, direct or indirect discrimination on the basis of disability (physical or mental) is prohibited. Second, employers need to know that a breach of the Code could result in reinstatement, back-pay and significant general damages awards. So, if an employer reprimands an employee for slow performance or insubordination, the employer must be careful that it is not indirectly discriminating against persons who have “caffeine withdrawal”, a mental disorder under the DSM-V, which manifests itself through symptoms like: difficulty concentrating, fatigue/drowsiness and depressed mood/irritability within a day of quitting or reducing caffeine. If an employer does so, it could face strict consequences.
Instead, the employer is obligated to accommodate the employee’s disability up to the point of undue hardship. Perhaps for an individual suffering from caffeine withdrawal, this may require temporarily moving the employee to a position requiring lower cognitive functioning and little interaction with other employees, or temporarily providing extended deadlines for completing work. Yet, every case of accommodation will be unique and require an individual analysis.
One thing that remains consistent throughout every instance of accommodation is that proving undue hardship will be very difficult. It will likely be most practical for employers to simply accept the new DSM-V diagnoses and focus efforts on obligations relating to accommodation, education and disclosure under AODA and the Code.
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