On May 25, 2022, the Department of Labor’s (DOL) Wage and Hour Division released a Fact Sheet and series of FAQs on FMLA leaves taken for mental health-related reasons. The new guidance does not change existing law. Rather, it serves to emphasize that mental health conditions should not be treated any differently than physical health conditions in FMLA administration.
Under FMLA, eligible employees working for covered employers may take job- and benefits-protected unpaid leave for their own serious mental or physical health condition, or to care for a spouse, child, or parent’s serious mental or physical health condition. A serious mental health condition is one that requires either: 1) inpatient care in a hospital or treatment center; 2) continuing treatment by a healthcare provider for an incapacitating condition lasting more than three consecutive days; or 3) treatment at least twice a year for a chronic condition that causes occasional periods of incapacitation. Employers may require a healthcare provider’s certification supporting FMLA leave but cannot require a diagnosis.
The Fact Sheet provides the following examples of FMLA leaves that may be taken for the employee’s own mental health condition or as caregiver leave for certain family members:
- Leave for the employee’s mental health condition.
Example: Karen is occasionally unable to work due to severe anxiety. She sees a doctor monthly to manage her symptoms. Karen uses FMLA leave to take time off when she is unable to work unexpectedly due to her condition and when she has a regularly scheduled appointment to see her doctor during her work shift.
- Caregiver leave for family member (spouse, child or parent) with a mental health condition.
Example: Wyatt uses one day of FMLA leave to travel to an inpatient facility and attend an after-care meeting for his fifteen-year-old son who has completed a 60-day inpatient drug rehabilitation treatment program.
- Caregiver leave for disabled adult child with a mental health condition.
Example: Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and was recently released from several days of inpatient treatment for a mental health condition. She is unable to work or go to school and needs help with cooking, cleaning, shopping, and other daily activities as a result of the condition.
- Military caregiver leave for mental health conditions.
Example: Gordon’s spouse began to have symptoms of PTSD three years after she was honorably discharged from military service overseas. Gordon uses FMLA leave for two weeks to transport his spouse to and from outpatient treatment at a Veteran’s Administration hospital and to assist her with day-to-day needs while she is incapacitated.
The FAQs elaborated on these examples. Specifically, as to caregiver leave for a disabled adult child with a mental health condition, “disability” is defined by the ADA; that is, a mental or physical condition that substantially limits one or more major life activity, such as working. The FAQs further note that caregiver leave includes participating in a spouse’s, child’s, or parent’s treatment program in addition to providing physical and psychological care.
The Fact Sheet and FAQs stress two final points related to FMLA administration. First, employers must maintain employee medical (including mental health) records confidential and separate from routine personnel files. However, an employee’s manager may be informed of the employee’s need for leave and any work duty restrictions or accommodations. Second, employers must not discourage leave by threatening to disclose an employee’s or family member’s mental health condition or otherwise interfere with an employee exercising their FMLA rights.
Again, this latest DOL guidance does not change existing FMLA rules in any way. It simply reiterates that mental health conditions should be treated no differently than physical health conditions in administering FMLA leaves.
Fact Sheet #280: Mental Health Conditions and the FMLA »
FAQs: Mental Health and the FMLA »