DOL Issues Guidance on FMLA and Mental Health Conditions

The U.S. Department of Labor (DOL) has released new resources on workers’ rights to leave for mental health conditions under the Federal Family and Medical Leave Act (FMLA). The DOL’s Wage and Hour Division issued the guidance as part of Mental Health Awareness Month to provide employers additional information on how to handle leave requests for mental health concerns. Among the notable provisions in the guidance – especially given the ongoing COVID-19 pandemic, incidents of gun violence, and news regarding the economy – is a reminder that an FMLA-eligible individual working for an employer subject to FMLA may take covered leave due to anxiety.

New DOL Fact Sheet and FAQs

The new guidance includes:

• Fact Sheet #28O: Mental Health Conditions and the FMLA
• Frequently asked questions (FAQs) on the FMLA’s mental health provisions

Mental Health as a Serious Health Condition

An eligible employee may take FMLA leave for their own serious health condition or to care for a spouse, child or parent because of their serious health condition.

The new resources make clear that mental health conditions are considered serious health conditions under the FMLA if they require inpatient care or continuing treatment by a health care provider, such as an overnight stay in a treatment center for addiction or continuing treatment by a clinical psychologist.

The fact sheet states that chronic conditions such as anxiety, depression, or dissociative disorders that cause occasional incapacitated periods and require treatment at least twice a year, and recurs over an extended period fall under the “continuing treatment” definition.

Additionally, the FAQs provide additional examples of situations that qualify for FMLA leave, including treatment sessions for anorexia nervosa and caring for an adult child with a mental health condition who cannot work and is incapable of self-care because of an ADA-defined disability like major depressive disorder. An employee in this case may take FMLA leave to assist the adult child with daily activities including cooking, cleaning, and shopping.

HIGHLIGHTS

• Mental health conditions can be serious health conditions.
• FMLA leave may be used for regularly scheduled psychologist appointments in certain circumstances.
• FMLA leave may be used to care for adult children with mental health conditions in certain circumstances.
• Employers may not retaliate against employees for taking FMLA leave for mental health reasons.