Earlier this year, the Wage and Hour Division (WHD) of the U.S. Department of Labor published new guidance related to the Family and Medical Leave Act (FMLA), labeled Fact Sheet #280, that specifically offers an explanation of the circumstances when an eligible employee may utilize leave under the FMLA in connection with a mental health issue. At the same time, the WHD released new FAQs that are meant to guide employers through a variety of situations where FMLA leave may be appropriately taken.

Neither the guidance nor the FAQs create any new regulations or requirements for employers, but are simply meant to give employers greater insight into when job-protected leave must be provided to an employee caring for his or her own mental health condition, or that of a close family member.

Qualifying mental conditions

As with physical health conditions, the fact sheet explains that a mental condition can qualify as a serious health condition under the FMLA if it requires inpatient care or continuing treatment by a healthcare provider. “Continuing treatment” by a healthcare provider is further broken down in the Fact Sheet as including:

• “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.”

The fact sheet identifies examples of chronic conditions that could qualify for mental health leave under the FMLA, including major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. However, the fact sheet also points out that an employer may not require that an employee present an official diagnosis of a mental health disorder to qualify for FMLA leave. Of course, an employer is still entitled to require that a healthcare provider certify the need for leave even though there may be no official diagnosis.

Employers are urged to give special consideration to regulations from the DOL and the Equal Employment Opportunity Commission that may qualify an employee’s adult child as disabled, and thus make it possible for the employee to take leave to care for the mental health condition of the adult child. The new fact sheet also addresses the use of 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 condition. As a specific example, the guidance references an employee utilizing FMLA leave to take his/her son to an inpatient facility to receive treatment for an eating disorder. According to the guidance, “providing care” in this context could also include providing a family member with psychological comfort and reassurance. Additionally, the guidance covers FMLA leave for military caregivers and identifies service members and veterans suffering from conditions such as post-traumatic stress disorder and depression as qualifying or the use of military caregiver leave.

Additional legal obligations for employers

Finally, the guidance reminds employers of their legal obligation to keep employee medical records confidential, and the importance of providing information to supervisors in a limited fashion, and only when here is a legitimate need for the supervisor to know about the information. Likewise, the fact sheet reiterates that employees who utilize FMLA leave are protected from retaliation, and that employers must not restrain, deny or interfere with the exercise of any rights afforded an employee under the FMLA.

The takeaway

Employers face the same obligations and restrictions regardless of the mental or physical nature of a condition requiring leave. Although sometimes they are not as obvious as physical conditions, mental health conditions are entitled to the same treatment and protection under the Family and Medical Leave Act.