The DOL Issues Guidance on Mental Health and the FMLA

Marking National Mental Health Awareness Month, the U.S. Department of Labor issued several resources addressing employee use of leave under the Family and Medical Leave Act for mental health conditions, including a fact sheet, FAQs, and a blog post.

• Fact Sheet – “Mental Health Conditions and the FMLA.” Noting that mental health conditions may constitute an FMLA serious health condition, the DOL makes the following points of significance.
  • Mental health conditions are considered serious health conditions if they require either inpatient care or continuing treatment by a health care provider.
    • Inpatient care includes an overnight stay in a hospital or other treatment facility, such as a treatment center for addiction or eating disorders.
    • Continuing treatment by a health care provider means either:
      • Conditions that incapacitate an individual for more than three consecutive days and require multiple appointments with a health care provider, including a psychiatrist, clinical psychologist or clinical social worker, OR a single treatment by such a provider with follow-up care, such as prescription medication, outpatient rehabilitation counseling, or behavioral therapy.
      • Chronic conditions, including anxiety, depression or dissociative disorders, causing occasional incapacity and requiring treatment by a health care provider at least twice a year.
    • Leave may be taken for the following reasons (with the DOL’s examples)
      • The employee’s own mental health condition. For example, an employee with severe anxiety may take FMLA when she is unexpectedly unable to work due to her condition and for regularly scheduled appointments with her doctor.
      • To care for a family member with a mental health condition, including providing psychological comfort and reassurance that would be beneficial to that family member. For example, an employee may use FMLA leave to travel to an inpatient facility and attend an after-care meeting for an under-18 child completing an inpatient drug rehabilitation treatment program.
      • Although an employee’s child typically must be under age 18, FMLA leave is available to care for an adult child where they are incapable of self-care because of am ADA-covered mental disability, including conditions such as major depressive disorder, bipolar disorder, post-traumatic stress disorder (PTSD), obsessive compulsive disorder, and schizophrenia. Such conditions may be active only periodically (rather than constantly), and may have started at any age (not just under 18). For example, an employee may use FMLA to care for an adult daughter who was recently released from inpatient care for a mental health condition that prevents her from working or going to school, and who requires help with cooking, cleaning, shopping and other daily activities.
      • To care for a military servicemember (spouse, adult child, parent, or next of kin) with a mental health condition that was incurred or aggravated in the line of duty, including PTSD, a traumatic brain injury (TBI), or depression. For example, an employee whose spouse developed PTSD after being discharged from military service may use FMLA to take them to outpatient treatment at a VA hospital and to assist with day-to-day needs when incapacitated.

• FAQs – Mental Health and the FMLA. Through a series of questions and answers, the DOL states that FMLA leave is available for the following mental-health-related situations (reiterating, in large part, information from the Fact Sheet):
  • When an employee is unable to work due to a chronic mental health condition (like severe anxiety) that causes occasional periods of incapacity and for which the employee is receiving treatment from a health care provider at least twice a year.
  • For treatment visits and therapy sessions for the employee’s mental health condition that constitutes a serious health condition.
  • To care for an adult child if the child is incapable of self-care and needs care because of an ADA-covered disability that is also an FMLA-covered serious health condition.
  • To care for a family member undergoing inpatient treatment for a mental health condition, including participating in their treatment program or attending a care conference with the family member’s health care providers.
  • To provide physical (e.g. helping with basic medical, hygienic, nutritional or safety needs) and psychological care to a family member with a mental health condition, like depression. The employee need not be the only person available to provide care.
  • To care for a family member who is a veteran suffering from a mental health condition that was incurred or aggravated during military duty, although it may not manifest itself until after discharge – such as PTSD, TBI, or depression.

The DOL further makes the following points:

• Employers must keep mental health records confidential and separate from the employee’s regular personnel file. Managers and supervisors may be informed of an employee’s medical leave, work restrictions, or need for reasonable accommodations under the ADA.
• Employers may not discriminate or retaliate against employees for exercising or attempting to exercise their FMLA rights – including by considering FMLA leave for employment actions like hiring, promotions or discipline or counting FMLA leave in points-based attendance policies.

• Blog Post – “The Family and Medical Leave Act: Essential for Mental Health-Friendly Workplaces.” In the DOL’s blog post, it emphasizes the availability of FMLA leave for employees due to their own mental health disorders or to care for family members with such conditions. It references the new fact sheet and FAQs, and notes that “all have a role to play in promoting mental-health friendly workplaces.” The DOL asserts that it will focus on FMLA outreach and enforcement, while identifying the following for employers and employees:
  • Organizational leadership can set the tone for a supportive, inclusive workplace.
  • Managers and supervisors can provide accommodations and promote assistance programs.
  • Co-workers can listen and be a source of support to colleagues.
  • Workers with mental health conditions can ask for what they need to perform their best.