May 31, 2022 | Category: Uncategorized

The Department of Labor (DOL) recently issued a reminder to employers regarding mental health conditions and the Family and Medical Leave Act (FMLA). Namely that mental health conditions can be serious health conditions for the purpose of FMLA coverage.

On May 25, 2022, the DOL released guidance for employers to help them understand how FMLA applies to mental health conditions. Fact Sheet #28O: Mental Health Conditions and the FMLA provides an explanation of when employees can use FMLA for a mental health condition. Frequently Asked Questions on the FMLA’s mental health provisions goes over some specific scenarios regarding the use of FMLA for mental health conditions. These two pieces of guidance come as Mental Health Awareness Month comes to a close.

FMLA provides eligible employees of covered employers with 12 workweeks of job-protected leave in a 12-month period for certain medical and family reasons. That includes taking leave for an employee’s own serious health condition, or to care for a spouse, child, or parent because of a serious health condition.

The Employee’s Own Serious Health Condition

An eligible employee may take up to 12 workweeks of job-protected leave for their own serious health condition if that condition makes the employee unable to perform their essential job duties. Employers are permitted to require employees to submit a certification from a healthcare provider to support the need for leave. However, that certification only needs to provide sufficient information to support the need for leave. A diagnosis is not required in order for an employee to be entitled to leave.

To Care for a Family Member’s Serious Health Condition

An eligible employee may take up to 12 workweeks of job-protected leave to provide care for a spouse, child, or parent who is unable to work or perform other regular daily activities due to a serious health condition. Providing care includes assistance with daily activities as well as psychological comfort and reassurance. FMLA leave to provide care for a child with a serious health condition is generally limited to children under the age of 18 unless the adult child is incapable of self-care due to their serious health condition.

Additionally, eligible employees may be entitled to up to 26 workweeks of leave to care for covered servicemembers and certain veterans with a serious injury or injury. This can include mental health conditions that were incurred in the line of duty or were aggravated during military service. Some examples include post-traumatic stress disorder (PTSD), traumatic brain injury (TBI), and depression. An employee needs to be the spouse, son, daughter, parent, or next of kin of the service member to be eligible for FMLA leave for this reason.

Like with their own serious health condition, employers are permitted to require certification to support the need for leave to care for a family member’s serious health condition.

When Mental Health is a Serious Health Condition

A mental health condition is considered a serious health condition under FMLA when it requires (1) inpatient care, or (2) continuing treatment by a healthcare provider.

Inpatient care includes an overnight stay in a hospital or other medical care facility. Continuing treatment by a healthcare provider includes (1) conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment (multiple appointments with a healthcare provider or a single appointment with follow-up care), and (2) chronic conditions that cause occasional periods when an individual is incapacitated and require treatment by a healthcare provider at least twice a year.

The National Institute of Health estimates that approximately 52.9 million adults in the United States live with mental illness. However, only about half receive the help they need. The DOL stated in its press release announcing this new guidance that it did not want accessing FMLA leave to be another obstacles those individuals need to overcome to get the mental health support that they need.