New DOL Guidance Addresses Mental Health Leave Under FMLA

Butler Snow LLP

Butler Snow LLP

After the past few years have heightened feelings of stress and isolation for so many people, and with the seemingly continuous news cycle of incidents of mass violence, mental health has taken a much-needed place in the forefront of the national conversation lately.  Recently, the Department of Labor reminded employers that mental health affects employees and the workplace, too.  New DOL guidance reiterates that a mental health condition may qualify as a serious health condition under the FMLA, and employers should be prepared to properly handle leave requests involving the mental health of an employee or an employee’s family member.

The Family Medical Leave Act: Background

The Family Medical Leave Act (FMLA) FMLA leave is available to eligible employees. Employees are eligible if they work for a covered employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12 months before the leave, and work at a location where the employer has at least 50 employees within 75 miles.  Private employers are covered employers under the FMLA if they employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers or successors in interest to another covered employer. Public agencies, including a local, state, or Federal government agency, and public and private elementary and secondary schools are FMLA covered employers regardless of the number of employees they employ.

FMLA requires employers to: (1) provide 12 work weeks of FMLA leave each year; (2) continue an employee’s group health benefits under the same conditions as if the employee had not taken leave; and (3), restore the employee to the same or virtually identical position at the end of the leave period.

FMLA may be unpaid or may be used at the same time as employer provided paid leave. For more information about the FMLA generally, see Fact Sheet #28.

Rise in Mental Health Conditions in the Workforce

The United States Equal Employment Opportunity Commission (EEOC) newly released its fiscal year 2021 report on charges of discrimination.  The EEOC’s report noted 37.2% of charges included disability-related claims under the ADA. Of those ADA claims, nearly 30% alleged discrimination based on mental health conditions.  The large number of claims mirrors what employers have seen in the workplace.  Mental health issues among employees are on the rise.  In response, many employers have implemented expanded employee assistance programs or expanded paid time off to aid employees experience mental health concerns.

Employers have recognized a concrete impact on the workplace.  A recent World Health Organization (WHO) study aimed at identifying the impact of mental health issues on the global economy estimated the associated cost is approximately $1 trillion per year in lost productivity. The WHO study also highlighted that employers who take an active role in supporting employees with mental health issues reduce absenteeism, increase productivity and increase profit.

United States Department of Labor’s Response

The United States Department of Labor (DOL) has also recognized the outsized impact on productivity the increase in mental health issues among employees has had on the workplace.  In response, the DOL has provided two new guidance documents:  Fact Sheet #280: Mental Health Conditions and the FMLA and Frequently Asked Questions on the FMLA’s mental health provisions.  The guidance reiterates that an eligible employee can take a “job-protected leave under the FMLA” for “serious health condition[s] or to care for a spouse, child or parent because of a serious health condition.” The guidance also explains that serious health conditions include both physical and mental health conditions that require (1) inpatient care; or (2), ongoing treatment by a healthcare provider.   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.


It can be difficult to navigate FMLA leave requests even in some of the most straight-forward scenarios, and the nature of mental health diagnoses, symptoms, and treatment can make the FMLA process even more confusing for employers.  It is imperative that employers familiarize themselves with the Fact Sheet and FAQs to understand their FMLA compliance obligations and be prepared to identify and handle FMLA-covered leave requests.  However, even with the DOL guidance to lean on, employers should seek guidance where there is any confusion as to whether or not leave an individual is qualified and/or covered under the FMLA, especially before denying a request.

Irrespective of technical compliance issues, the recently-published data confirms that it is in employers’ best interest to support employees’ mental health as healthy employees are more focused and productive.  Employers should consider programs in addition to the FMLA framework to support employees’ mental health to ensure a successful workforce.

When in doubt in assessing these difficult issues, it is always best to consult with an experienced employment law attorney.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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