DOL Issues FAQs on Mental Health Conditions and FMLA Leave

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May 2022

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The Department of Labor (DOL) recently released a set of FAQs on when employees may take Family and Medical Leave Act (FMLA) leave for a mental health condition. As a reminder, the FMLA requires covered employers to provide eligible employees with up to 12 weeks of unpaid leave during a 12-month period for qualifying reasons. One of the stated reasons is an employee or their family member’s “serious health condition,” which is defined as an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a health care provider.

According to the new FAQs, a mental health condition can meet both the definition of a serious health condition and the definition of disability. The DOL considers the following conditions as meeting the requirements of a serious health condition:

 

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

 

To meet the definition of disability, the FMLA borrows from regulations issued by the EEOC under the Americans with Disabilities Act (ADA). These regulations state that mental health conditions should be considered a disability if they are “substantially limiting,” such as major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.

 

The FAQs make clear that eligible employees are entitled to FMLA leave to treat their, or a family member’s, qualifying mental health condition. Because of the nature of many mental health conditions, leave will likely be intermittent, including when an employee may be unable to work unexpectedly due to their mental health condition or for regularly scheduled appointments to receive treatment for the condition. Employers are encouraged to review their FMLA policies and procedures to ensure continued compliance with FMLA.

Action Items

  1. Update leave policies, as applicable.
  2. Have appropriate personnel trained for compliance.
  3. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase