U.S. Department of Labor Issues Guidance on FMLA Use for Mental Health Conditions

Nelson Mullins Riley & Scarborough LLP

Nelson Mullins Riley & Scarborough LLP

The U.S. Department of Labor published “Fact Sheet #280: Mental Health Conditions and the FMLA” in May 2022, to explain leave eligibility under the Family and Medical Leave Act (FMLA) for use related to an employee’s own mental health condition or that of an immediate family member. While the Fact Sheet does not change or add to the FMLA or its regulations, it simply provides guidance and examples about use of leave for mental health.

An employee is eligible for FMLA leave after working for a covered employer for 12 months, has at least 1,250 hours of service for the employer during the 12 months before the leave, and is employed in a location that has at least 50 employees within 75 miles.  Covered employers are required to provide 12 work weeks of FMLA leave each year, continue an employee’s group health benefits under the same conditions as if the employee had not taken leave, and restore the employee to the same or virtually identical position at the end of the leave.

FMLA leave may only be used for “serious” physical and mental health conditions.  The Fact Sheet defines a serious condition as one that requires inpatient care or continuing treatment by health care providers.  More specifically, covered conditions include those that incapacitate an individual for more than three consecutive days and require ongoing medical treatment.  Also included are chronic conditions like anxiety and depression that cause occasional periods of incapacitation and require medical treatment at least twice a year.  Proof of diagnosis of a serious mental health condition is not required, but some employers may require certification from a health care provider that is sufficient to support the need for leave.  Employees whose conditions render them disabled, i.e., unable to perform their essential job function(s), also may take up to 12 weeks of FMLA leave. 

Leave similarly may be taken to provide care for a spouse, child, or parent who is unable to work or perform regular daily activities.  Parents with adult children may also be eligible for leave if the individual is incapable of self-care because of a mental or physical disability, as defined by the Equal Employment Opportunity Commission’s regulations under the ADA.

The FMLA also provides employees with up to 26 workweeks of military caregiver leave in a 12-month period to care for current and former servicemembers with a serious injury or illness.  The injury or illness must be one that prevents or prevented a service member from performing their duties.  The injury or illness for current servicemembers must be one that was incurred in the line of duty.  Covered conditions for veterans include those that substantially reduce their ability to work, including those that manifested after discharge (i.e., PTSD and depression).

Under the FMLA, employers are required to maintain the confidentiality of an employee’s medical records in accordance with ADA regulations.  Employers are also prohibited from interfering with, restraining, or denying the exercise of, any rights provided by the FMLA.  The U.S. Department of Labor, Wage and Hour Division is responsible for enforcing the FMLA regulations.  For more information and examples of when FMLA leave is appropriate for mental health conditions, please visit Fact Sheet #280: Mental Health Conditions and the FMLA.  The Fact Sheet can be found on the Department of Labor’s website here.

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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