When Employees Request Leave For Mental Health Conditions

HR Pros can breathe a sigh of relief. The United States Department of Labor (DOL) dropped some new mental health resources for employers grappling with providing leave as a reasonable accommodation for an employee’s (or their family member’s) mental health condition.

I and every other employment blogger is posting about this today, but…it’s too good not to share!

I’m not going to bury the lede—this fact sheet explains when eligible employees of covered employers may use FMLA leave for their own or a family member’s mental health condition.

What Is The FMLA?

The Family and Medical Leave Act (FMLA) provides job-protected leave to address an employee’s serious health conditions, including mental health conditions.

As a refresher, it entitles eligible employees up to 12 weeks of job-protected unpaid leave in a year for certain family and/or medical reasons. The FMLA also provides for the continuation of group health insurance coverage under the same terms and conditions had the employee not taken leave.

An employee is “eligible” for this leave if (s)he has worked for the employer for 1,250 hours and for at least twelve months. Employees are not eligible if they work for just any employer; rather, the employer has to have 50 or more employees working within 75 miles of each other.

FMLA leave bases include, generally, having a baby, adopting or fostering a child or caring for a spouse, child, or parent who has a serious health condition or dealing with one’s own serious health condition, including a mental health condition.

Photo by Hannah Wei on Unsplash

As the fact sheet reminds employers, a “disability” under the FMLA is a mental or physical impairment that substantially limits one or more major life activities pursuant to the Equal Employment Opportunity Commission’s (EEOC) regulations on the Americans with Disabilities Act (ADA).

How Do The FMLA and Mental Health Fit Together?

According to the EEOC, conditions that “should easily be concluded” to be “substantially limiting” include major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

Wait, there’s more.

Check out the DOL’s Frequently Asked Questions on the FMLA’s mental health provisions. They are SO GOOD and include common issues faced by employers:

My son is in the fourth grade and sees a doctor for attention-deficit/hyperactivity disorder (ADHD). After I used FMLA leave to take my son to a behavioral therapy appointment for this condition my employer sent me an e-mail informing me that I received a negative point on my attendance record. Can my employer punish me for using FMLA leave?

No. Employers are prohibited from discriminating or retaliating against employees for having exercised or attempting to exercise any FMLA right. Examples include using the taking of FMLA leave as a negative factor in employment actions, such as in hiring, promotions, or disciplinary actions or counting FMLA leave against employees in points-based attendance policies.   

The scenario above, like mental health challenges themselves, is ubiquitous in workplaces right now for caregivers.

Another FAQ tells employers that when an employee sees a psychologist regularly for anorexia (or substitute depression, PTSD, anxiety, bipolar disorder), they may receive intermittent leave under the FMLA in order to obtain treatment.

Under the FMLA, you may use available leave when you are unable to work, including being unable to perform any one of the essential functions of your position, due to a serious health condition, or when you are receiving treatment for that condition.

Thanks DOL! I’m sure employers and HR professionals everywhere appreciate these new resources.

Remember The March 2022 Mental Health Toolkit

Employers, remember that the DOL issued a news release in March explaining its “public education campaign on the importance of mental health-friendly workplaces.”

At the heart of the “Mental Health at Work: What Can I Do?” campaign is a public service announcement that highlights how everyone in a workplace setting – whether you are a CEO, manager, co-worker, or an employee who voluntarily identifies as having a mental health condition – can promote workplace well-being. These roles can range from setting the tone for an inclusive workplace, to providing and requesting assistance and accommodations, to being a source of support to peers and colleagues.

https://www.dol.gov/newsroom/releases/odep/odep20220329-0

ICYMI, here are some of the resources posted by the Campaign for Disability Employment PSA:

Employer Takeaway

The DOL is stepping it up with this new fact sheet and additional guidance.

These resources educate employers as to how to get it right when employees request FMLA leave for mental health conditions. Still have questions? Talk to employment counsel. The FMLA can be tricky, and we can help.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.