Recently issued guidance from the U.S. Department of Labor (DOL) reminds employers that eligible employees may take job-protected time off under the Family and Medical Leave Act (FMLA) for treatment of their own serious mental health condition or to care for a spouse, child or parent who has one. The new DOL resources are designed to help covered employers better understand how to comply with the FMLA’s mental health provisions.
The FMLA applies to private companies with 50 or more employees and all public employers. It covers “serious health conditions,” which include mental health issues “if they require inpatient care or continuing treatment by a health care provider.” For example, overnight stays in a hospital or other medical care facility and continuing treatment by a psychologist qualify for FMLA leave.
In the new “FMLA Fact Sheet #280: Mental Health Conditions and the FMLA,” the DOL clarifies that the following serious mental health conditions fall under the “continuing treatment” definition:
Those that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, and
Chronic conditions such as anxiety, depression and other dissociative disorders that occasionally incapacitate someone and require health care treatment at least twice a year.
The accompanying DOL-issued “Mental Health and the FMLA Frequently Asked Questions” provide additional examples of situations that qualify for FMLA leave. These include treatment for anorexia and assisting an adult child incapable of self-care because of a mental health condition that meets the definition of disability under the American with Disabilities Act.
FMLA Mental Health Certification and Medical Records
Employers may not retaliate against employees who take FMLA leave for mental health reasons but may require certification from a health care provider to support the need for it. A diagnosis, however, is not required for employees who exercise their FMLA rights.
The FMLA also requires employers to keep employee medical records confidential and prohibits them from interfering with an employee’s right to take FMLA leave.
Employer Compliance with Mental Health Leave of Absence Laws