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FMLA Expansion to Care for Mental Health Conditions

By now you have probably heard about the Family and Medical Leave Act (FMLA), a federal law that was passed in 1993 to help employees balance their work responsibilities and family demands. It extends to expectant mothers or for recovery from serious physical health conditions, such as surgeries or heart attacks. However, the application process for FMLA protection for mental health conditions is more nuanced. Since the COVID-19 pandemic, rates of anxiety, depression, and substance use disorder have increased dramatically and in response to this, the U.S. Department of Labor (DOL) has provided guidance on when, and how, FMLA leave can be taken to address mental health conditions for employees and their families. Below we break down the facts, provide examples, and explain your basic protections when taking FMLA leave.

FMLA Mental Health Conditions Fact Sheet (as of May 2022)

  • An eligible employee may take FMLA leave for their own serious health condition, or to care for a spouse, child, or parent because of a serious health condition. A serious health condition can include a mental health condition.
  • Mental and physical health conditions are considered serious health conditions under the FMLA if they require 1) inpatient care or 2) continuing treatment by a health care provider.
    • A serious mental health condition that requires inpatient care includes an overnight stay in a hospital or other medical care facility, such as, for example, a treatment center for addiction or eating disorders.
    • A serious mental health condition that requires continuing treatment by a health care provider includes—
      • Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, either multiple appointments with a health care provider, including a psychiatrist, clinical psychologist, or clinical social worker, or a single appointment and follow-up care (e.g., prescription medication, outpatient rehabilitation counseling, or behavioral therapy); and
      • Chronic conditions (e.g., anxiety, depression, or dissociative disorders) that cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year.
    • An employer may require an employee to submit a certification from a health care provider to support the employee’s need for FMLA leave. The information provided on the certification must be sufficient to support the need for leave, but a diagnosis is not required.

For more information about certification of a serious health condition under the FMLA, visit https://www.dol.gov/agencies/whd/fact-sheets/28g-fmla-serious-health-condition

Taking FMLA for Mental Health Conditions – With Examples
The FMLA ensures employees can take leave for regularly scheduled appointments to see their health care professionals during their work shifts.  For example, If an employee struggles with extreme anxiety, they can leave during their scheduled work hours to attend their appointment with their therapist.

Employees can use FMLA leave to provide care for a spouse, child, or parent who is unable to work or perform their regular activities due to a mental health condition. For example, an employee may use FMLA to take their child to an inpatient facility to receive treatment for a eating disorder or other mental health condition.
Eligible employees can take up to 26 weeks of FMLA to care for a covered service member or veteran with a serious injury or illness. For example, an employee can take leave to care for a military family member who has PTSD or depression.

Basic Protections

Employees are protected against retaliation for taking FMLA leave. Employers are prohibited from restraining, denying, or interfering with their rights afforded to the under FMLA.

When an employee takes FMLA, employers are legally obligated to keep their employees’ medical records confidential. The confidential provisions can sometimes become lax when supervisors need to be informed of an employee’s need for leave and/or an accommodation. It is recommended that employees provide information to managers on a need-to-know basis.

Mental health conditions are a growing pandemic in the United States but are not always as obvious as physical health conditions. As an employer, be mindful that even if you cannot see the health condition, they should be treated the same as physical health conditions. Employees are still entitled to rights under FMLA to care for themselves or family members with mental health conditions. If you have questions or need help navigating the DOL guidance, OGC Solutions is here to provide assistance or context about the matter.

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