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Regulatory Update: Don’t Forget the FMLA and Mental Health

July 8, 2022
The law also applies to employees who are caring for family members.

The Department of Labor (DOL) has issued new guidelines explaining to employers when the Family and Medical Leave Act (FMLA) applies to mental health conditions. The changes were announced by DOL’s Wage and Hour Division (WHD).

This newly published guidance issued by WHD includes Fact Sheet # 28O: Mental Health Conditions and the FMLA and Frequently Asked Questions on the FMLA’s mental health provisions.

The division points out that the National Institute of Mental Health has estimated that nearly one in five U.S. adults—or about 52.9 million people in 2020—live with a mental illness, and that only about half receive the help needed.

“While many people coping with mental illness may face barriers to treatment including social stigmas, a lack of available services or financial resources, the DOL is determined to ensure that obtaining job-protected leave under the FMLA is not another obstacle to overcome when workers seek the mental health support they need,” the WHD announcement said.

Private employers that have 50 or more employees for at least 20 workweeks in a year are required to provide their eligible employees with FMLA leave. This leave is unpaid but job-protected, meaning that employees returning from FMLA leave must be restored to their original job or equivalent position.

Employees are eligible once they have worked for a covered employer for at least 12 months and logged at least 1,250 hours of work during the period immediately preceding leave, which may be taken for an employee’s own serious health condition or to care for a spouse, child or parent because of their serious health condition, which can include mental health conditions.

“Mental and physical health conditions are considered serious health conditions under the FMLA if they require inpatient care or continuing treatment by a health care provider, such as an overnight stay in a treatment center for addiction or continuing treatment by a clinical psychologist,” WHD said.

The new WHD guidance notes that, although FMLA leave to permit an employee to care for a child with a serious health condition is generally available only when the child is under the age of 18, an employee should be granted FMLA leave to care for an adult child, if the child’s serious health condition also satisfies the definition of a disability, say attorneys Susan Gross Sholinsky and Tiffany Sarchet of the law firm of Epstein Becker & Green.

Who Else Is Included?

The lawyers remind employers that regulations developed by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disability Act (ADA) should inform them as to whether an employee’s adult child’s serious health condition also qualifies as a disability warranting FMLA leave. This policy was previously explained in WHD Fact Sheet #28K, although not specifically referencing mental health conditions.

The new WHD guidance also addresses FMLA leave for military caregivers, providing examples such as post-traumatic stress disorder and depression in a servicemember or veteran as conditions that could justify an employee’s use of military caregiver leave under the FMLA.

Inpatient care for a mental health condition might include something like time spent in a residential care facility for treatment of an eating disorder or substance abuse problem. Examples of “continuing treatment” include ongoing counseling by a clinician, such as a licensed clinical social worker, psychologist or psychiatrist, say Sholinsky and Sarchet.

Also qualifying as serious mental health conditions under the FMLA are those kinds that result in incapacitating an individual for more than three consecutive days and require ongoing medical treatment as well as chronic conditions, they added.

These conditions include anxiety, depression or dissociative disorders that can cause occasional periods of incapacitation, requiring treatment by a health care provider at least twice a year. An eligible employee might be entitled to FMLA leave—including intermittent leave—to attend to such conditions, either for themselves or to care for an eligible family member with such a condition.

Under the law, an employer is permitted to insist that an employee submit a certification from a health care provider to support the employee’s claimed need for FMLA leave. Although the information provided on the certification must be sufficient to support the need for leave, a diagnosis is not required, the attorneys point out.

However, they remind employers that any medical records collected must be kept confidential and maintained in a file separate from the employee’s general personnel file. Managers and supervisors may be advised on a need-to-know basis if an employee must take leave or requires accommodations.

Employers are prohibited from interfering with or retaliating against any employee who seeks to exercise rights under the FMLA, Sholinsky and Sarchet stress. Violations of these rules can be costly to employers: Employees who claim violations of the FMLA can seek redress through the WHD or in court.

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