On May 25, 2022, in connection with National Mental Health Awareness Month, the U.S. Department of Labor (DOL) announced that the Wage and Hour Division (WHD) had published new Family and Medical Leave Act (FMLA) Guidance and FAQs on requirements for providing FMLA leave to employees to address their own mental health conditions or to care for a covered family member with a mental health condition.
The newly issued Fact Sheet #280 explains when eligible employees may take FMLA leave to address mental health conditions, and the new Frequently Asked Questions (FAQ) offers explanations on how to address various scenarios that employers and employees could face in which use of job-protected leave available, under the FMLA, would be appropriate. The new resources are also intended to aid employers in better understanding how to comply with the FMLA and assist employees in understanding their rights under the FMLA regarding mental health conditions.
FMLA generally provides eligible employees with up to 12 workweeks of job-protected leave for their own serious health condition, or to care for a covered family member with a serious health condition. Physical and mental health conditions are considered serious health conditions under the FMLA. The guidance confirms that a mental health condition can constitute a “serious health condition” if the condition requires either:
Inpatient Care: A serious mental health condition that requires inpatient care includes a situation in which the individual stays overnight in a hospital or other medical care facility. Examples include rehabilitation centers for drug addiction and treatment centers for individuals with eating disorders.
Continuing Treatment by a Healthcare Provider: Mental health conditions that require continuing treatment by a health care provider include:
Conditions that incapacitate an individual for more than three (3) consecutive days and require ongoing medical treatment.
Chronic conditions that cause occasional periods when the individual is incapacitated and requires treatment by a health care provider at least twice a year.
Ongoing medical treatment for a mental health condition can be multiple appointments with a health care provider (such as a clinician, a licensed clinical social worker, psychologist, or psychiatrist) or a single appointment and follow-up care. Examples of such treatment include behavioral therapy, prescription medications, or rehabilitation counseling. Examples include anxiety, depression, and dissociative disorders.
An eligible employee might be entitled to FMLA leave – including intermittent leave – to attend to such conditions, either for themselves or to care for a covered family member with such a condition.
Additionally, the new guidance notes that although FMLA leave permits an employee to care for a child with a serious health condition it is generally available only when the child is under the age of 18. An employee should be granted FMLA leave to care for an adult child, if the child’s serious health condition also satisfies the definition of a disability. The guidance reminds employers that regulations developed by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disability Act (ADA) informs them as to whether an employee’s adult child’s serious health condition also qualifies as a disability warranting FMLA leave.
The new guidance also addresses FMLA leave for military caregivers, providing examples such as post-traumatic stress disorder and depression in a service member or veteran as conditions that could justify an employee’s use of military caregiver leave under the FMLA.
Reach out to PMP if you need any assistance regarding FMLA or any other employee leaves.