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Featured FMLA Insight – Mental Health Protections

| 08/16/2022 | Blog

Since its adoption in 1993, the Family Medical Leave Act has, to put it mildly, kept HR professionals nationwide on their toes.

The requirements of the FMLA are extensive and complex, and administration of individual leave requests under the law can be one of the more difficult tasks in human resources management. FLMA and related leaves has been the top issue addressed by our consultants (by far) for the past 30 years now!  It is not just the general application and requirements of the law, key definitions and interpretations and interplay with other applicable and related state and local laws; but now, we see the focus moving increasingly to issues relating to the interactive process and reasonable accommodation.

This week we feature timely insights on an increasingly significant and sensitive nuance of FMLA – protections for employee mental health conditions.  Yes – this is a very real concern and one every HR professional should be prepared to address.  Please continue to our blog for a detailed overview.

DOL Explains Expanding FMLA Leave to Care for Mental Health Conditions

We’ve all heard about the Family and Medical Leave Act (FMLA) when it comes to expectant mothers or for recovery from serious physical health conditions, such as heart attacks or surgeries. The application of FMLA protection for mental health conditions is more nuanced, however. Mental health conditions are increasing worldwide. According to the World Health Organization (WHO), there has been a 13% rise in mental health conditions and substance use disorders in the last decade.

In response to a growing acknowledgment of mental health as an aspect of overall health, the U.S. Department of Labor (DOL) provided guidance on when (and how) FMLA leave can be taken to address the mental health conditions of employees and their families.

DOL’s May 2022 FMLA Leave Fact Sheet

In the new fact sheet, the DOL reminded employers that the FMLA provides job-protected leave to employees who need time away from work to address mental health conditions. Those employees who qualify are entitled to FMLA leave of up to 12 weeks. During leave, they are still entitled to their group health benefits and should have the same or a virtually identical position upon their return to work. Employers may provide paid leave, but FMLA leave can also be unpaid depending on their specific policies.

As most employers are aware, FMLA leave should be used for a “serious health condition.” The FMLA provides that a mental health condition can be a serious health condition if it falls under its protections. To be a “serious health condition,” it must require (1) inpatient care, or (2) continuing treatment by a health care provider.

“Inpatient care” includes at least one overnight stay in a hospital or medical care facility. Treatment centers, such as those designed to treat addiction or eating disorders, also meet these definitions. “Continuing treatment by a health care provider” means that an employee is incapacitated for more than three consecutive days and requires ongoing medical treatment (i.e., multiple appointments). Continuing treatment also applies to a chronic condition (i.e., anxiety, depression, or dissociative disorder) that causes occasional periods during which they are incapacitated. In addition, they should be treated by a health care provider at least twice a year.

Notably, an employer can’t require an employee to have an official diagnosis of a mental health condition to take leave for it. They may still require an employee to submit a certification from a health care provider supporting the need for the leave, even if there is no official diagnosis.

Some mental health conditions that receive FMLA protections include major depressive disorder, bipolar disorder, PTSD, OCD, and schizophrenia.

Taking FMLA Leave

The FMLA ensures that employees can take leave if they have a regularly scheduled appointment to see their health care provider during their work shift. For example, if someone struggles with severe anxiety, she can take leave to attend an appointment with her therapist.

The DOL guidance also provides that employees may use FMLA leave to provide care for a spouse, child, or parent who is unable to work or perform regular, daily activities due to a mental health condition. For example, a worker may use FMLA leave to take his son to an inpatient facility to receive treatment for an eating disorder. “Providing care” in this context could also include psychological comfort and reassurance.

Eligible employees can take 26 weeks of FMLA leave to care for a covered servicemember or veteran with a serious injury or illness. For example, it is acceptable for someone to take leave to care for a military family member who has PTSD, a traumatic brain injury, or depression (even if the mental health condition manifested well after the individual became a veteran).

Basic Protections When Taking FMLA Leave

It goes without saying that employers are legally obligated to keep employees’ medical records confidential. The confidentiality provisions can sometimes become lax, however, when supervisors and managers need to be informed of an employee’s need for leave or an accommodation. Providing information to managers on a need-to-know basis (and in a limited fashion) is recommended.

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

Bottom Line

Mental health conditions are not always as obvious as physical health conditions, yet they should still be treated the same. You should be mindful that even if you can’t see the condition, employees are still entitled to rights under the FMLA to care for their (or a family member’s) mental health condition. The recent publication of the DOL Fact Sheet provides helpful guidance for trying to navigate when and how they can take FMLA leave for mental health conditions.

Alyssa L. Lazar is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia. Alyssa focuses her practice on labor and employment law. She has undergraduate degrees in both English and psychology and is perfectly poised to provide guidance and advice to clients as they navigate delicate situations with employees.  You can reach her at 304-933-8127 or alyssa.lazar@steptoe-johnson.com.