We’ve all heard about the Family and Medical Leave Act (FMLA) when it comes to expectant mothers or for recovery from serious physical health conditions such as heart attacks or surgeries. But more nuanced is the application of FMLA protection for mental health conditions. Mental health conditions are increasing worldwide. According to the World Health Organization, there has been a 13% rise in mental health conditions and substance use disorders in the past decade. The COVID-19 pandemic raised mental health awareness due to an uptick in mental health concerns.
In response to a growing acknowledgment of mental health as an aspect of overall health, the U.S. Department of Labor (DOL) has provided guidance on when (and how) FMLA leave can be taken to address the mental health conditions of employees and their families.
The DOL’s May 2022 Fact Sheet Regarding FMLA Leave
In the new fact sheet, the DOL reminds employers that the FMLA provides job-protected leave to employees who need time away from work to address mental health conditions. Those employees who qualify are entitled to FMLA leave of up to 12 weeks. During leave, those employees are still entitled to their group health benefits and either the same or virtually identical position upon their return back to work. Employers may provide paid leave, but FMLA leave can also be unpaid, depending on the employer.
As most employers are aware, FMLA leave is to be taken for a “serious health condition.” The FMLA provides that a mental health condition can be a serious health condition such that it falls under its protections. In order to be a “serious health condition,” a mental health condition must require 1) inpatient care or 2) continuing treatment by a health care provider. “Inpatient care” includes at least one overnight stay in a hospital or other medical care facility. Treatment centers, such as those designed to treat addiction or eating disorders, also meet these definitions. “Continuing treatment by a health care provider” means that an employee is incapacitated for more than three consecutive days and requires ongoing medical treatment (i.e., multiple appointments) or that the employee has a chronic condition (i.e., anxiety, depression, or dissociative disorder) that causes occasional periods in which the employee is incapacitated and is being treated by a health care provider at least twice a year.
Notably, an employer cannot require an employee to have an official diagnosis of a mental health condition in order to take leave. An employer may, however, still require an employee to submit a certification from a health care provider supporting the need for the leave even if there is no official diagnosis.
Some mental health conditions that receive FMLA protections include major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
The DOL’s Fact Sheet—Taking FMLA Leave
Even when employees are occasionally unable to work due to a mental health condition, the FMLA provides that employees can take leave if they have a regularly scheduled appointment to see their health care provider during their work shift. For example, an employee who struggles with severe anxiety is able to take leave to attend appointments with her therapist.
The DOL guidance also provides that employees may use FMLA leave to provide care for a spouse, child, or parent who is unable to work or perform regular daily activities due to a mental health condition. For example, an employee may use FMLA leave to take his/her son to an inpatient facility to receive treatment for an eating disorder. “Providing care” in this context could also include psychological comfort and reassurance.
Eligible employees are also able to take 26 weeks of FMLA leave to care for a covered service member or veteran with a serious injury or illness. For example, an employee could take leave to care for a military family member who has post-traumatic stress disorder, traumatic brain injury, or depression, even if the mental health condition manifested well after the individual became a veteran.
The DOL’s Fact Sheet—Basic Protections When Taking FMLA Leave
It goes without saying that employers are legally obligated to keep employees’ medical records confidential. The confidentiality provisions can sometimes become lax, however, when supervisors and managers need to be informed of employees’ needs to be away from work or needs for accommodations. Providing information in a limited fashion only to managers who need to know is recommended.
Employees are protected against retaliation for taking FMLA leave. Indeed, employers are prohibited from restraining, denying, or interfering with employees’ exercise of rights afforded to them under the FMLA.
Mental health conditions are not always as obvious as physical health conditions, yet they should still be treated the same. Employers should be mindful that even if they cannot see the condition, employees are still entitled to rights under the FMLA to care for their mental health condition or the mental health condition of someone they love. The recent publication of the DOL Fact Sheet provides helpful guidance to employers trying to navigate when and how employees can take FMLA leave for mental health conditions.