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6.6.22 | By Rachel H. Khedouri , Esq.

With a nod to the fact that May was National Mental Health Awareness month, the U.S. Department of Labor’s Wage and Hour Division issued two new publications on May 25, 2022, providing guidance for employers when workers seek leave for serious mental health conditions. Fact Sheet #280 “Mental Health Conditions and the FMLA” and FAQs on “Mental Health and the FMLA” both explain when eligible employees may use leave under the Family and Medical Leave Act (“FMLA”) for their own or a family member’s mental health condition. CLICK HERE for the Fact Sheet and HERE for the FAQs. The FMLA applies to private employers with 50 or more employees and leave can be taken by employees who work for such an employer and meet certain criteria.

The guidance makes clear that mental health conditions are considered serious health conditions for which employers must provide 12 weeks of job-protected FMLA leave when they require either inpatient care, including an overnight stay in a treatment center for addiction or eating disorders, or continuing treatment by a healthcare provider, such as a psychiatrist, clinical psychologist or clinical social worker. Chronic mental health conditions, such as severe anxiety, depression or dissociative disorders, also are considered serious health conditions where they cause occasional periods of incapacitation and require treatment by a health care provider at least twice per year.

The guidance reminds employers that FMLA leave may apply in connection with mental health conditions where:

  • the employee’s own serious health condition makes the employee unable to perform their essential job duties;
  • the employee is needed to provide care for a spouse, parent or child under the age of 18 with a serious health condition, including both physical care – such as basic hygienic, nutritional or safety needs – and psychological comfort;
  • the employee is needed to provide care for a child age 18 or older who is incapable of self-care because of a mental impairment that substantially limits one or more major life activities, including major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, or schizophrenia; or
  • the employee is needed to provide care for a spouse, son, daughter, parent or other next of kin who is a covered servicemember or veteran with a serious injury or illness, regardless of whether the injury or illness was incurred in the line of duty or developed after active duty, such as PTSD, a traumatic brain injury or depression.

The Fact Sheet and FAQs also remind employers of the FMLA’s obligations to keep employee medical records confidential and separate from general personnel files, while emphasizing that confidentiality obligations do not prevent informing supervisors and managers that the employee will be away from work or needs accommodations. Finally, the guidance underscores that prohibited retaliation under the FMLA includes refusing to authorize FMLA leave for mental health conditions, using the employee’s FMLA leave as a negative factor in making employment decisions, counting FMLA leave as a negative point under an attendance policy, as well as disclosing or threatening to disclose information about an employee’s or employee’s family member’s mental health condition to discourage the employee from taking leave.

Even after an employee’s 12 weeks of FMLA leave expire, an employee may be eligible for further leave or other reasonable accommodations under other applicable laws due to their mental health condition(s). Thus, employers are cautioned to review such situations very carefully with close attorney review. 


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