US DOL Clarifies Federal FMLA Mental Health Leave

The U.S. Department of Labor is reminding employers that employees with serious mental health conditions may be eligible for job-protected leave under the federal Family and Medical Leave Act. 

The department published new guidance to help employers understand the FMLA’s mental health provisions. 

Eligible employees may take federal FMLA leave for their own serious health condition, or to care for a spouse, child or parent because of a serious health condition.

An employer may require an employee to submit a certification from a healthcare provider to support the leave. 

According to the fact sheet, a diagnosis is not required if the certification is sufficient to support the need for leave. 

If there is a chance an employee’s mental health condition might fall under the definition of a serious health condition, an employer is responsible for providing their employee with the appropriate information about a leave under federal FMLA. 

Treatment Qualifications

Nearly one in five U.S. adults live with a mental illness, but only about half receive the help they need, according to a 2020 National Institute of Health report. 

While time off for mental health is becoming more common, employers and employees may not recognize what constitutes mental health leave under FMLA. 

Mental and physical health conditions are considered serious health conditions under federal FMLA if they require inpatient care or continuing treatment by a healthcare provider. 

Inpatient care and continuing treatment are both considered serious mental health conditions. 

Inpatient care includes an overnight stay in the hospital or other medical facility, like a treatment center for an addiction or an eating disorder.

Conditions

DOL officials said continuing treatment by a clinical psychologist constitutes a serious mental condition for:

• Conditions that incapacitate a person 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).
  
• Chronic conditions (e.g., anxiety, depression, or dissociative disorders) that cause occasional periods when a person is incapacitated and require treatment by a health care provider at least twice a year.    

DOL officials provided an example of a situation where an employee is experiencing anxiety: 

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.

Family Member Leave

Mental health conditions to care for an employee’s spouse, child or parent because of a serious health condition can differ somewhat depending on a child’s age. 

An employee can take leave if their spouse, parent, or child under the age of 18 is unable to work or perform regular daily activities because of a serious mental health condition. 

Care can include psychological comfort that would help the family member who is receiving inpatient or home care. 

DOL officials provided an example of this type of leave: 

Wyatt uses one day of FMLA leave to travel to an inpatient facility and attend an after-care meeting for his 15-year-old son who has completed a 60-day inpatient drug rehabilitation treatment program.

Adult Children

If a parent has a child who is 18 years old or older, who needs care because of a serious mental health condition, the parent can take leave under federal FMLA if the person is incapable of self care due to a mental or physical disability. 

Officials note that some mental health conditions fall under both the disability and serious health condition definitions.

DOL officials provided an emple of this leave:

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.