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DOL Issues Mental Health Fact Sheet to Address When FMLA Can Apply

June 3, 2022

By Michael Burns, courtesy of SBAM Approved Partner ASE

As noted in the Quick Hits section of today’s EPTW, last week the U.S. Department of Labor issued new information on the Family and Medical Leave Act (FMLA) further explaining when FMLA applies for mental health conditions.

Fact Sheet # 280 provides information on when a mental health condition is covered  by the FMLA and various examples of mental health conditions where the FMLA would protect job security during a leave where the employee is responding to their own mental health condition or one for their spouse, child, or parent.

The issuance of this Fact Sheet comes as Mental Health Awareness month comes to an end. Employers are reminded to be careful not to disregard employee mental health such as anxiety, post traumatic stress disorder, depression, as well as other mental health conditions that can rise to the level of serious health condition defined by the FMLA.

As employers try to shepherd employees back into the office, some employees may experience anxiety over safety or the risk to loved ones. Employers are advised not to disregard these situations.

Some information the Fact Sheet provides is:

Mental and physical health conditions are considered serious health conditions under the FMLA if they require 1) inpatient care or 2) continuing treatment by a health care provider.

A serious mental health condition that requires inpatient care includes an overnight stay in a hospital or other medical care facility, such as, for example, a treatment center for addiction or eating disorders. 

A serious mental health condition that requires continuing treatment by a health care provider includes—

  • 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.   

An employer may require an employee to submit a certification from a health care provider to support the employee’s need for FMLA leave. The information provided on the certification must be sufficient to support the need for leave, but a diagnosis is not required.

Additionally the DOL Fact Sheet provides examples of mental health situations that are covered under the FMLA for employers:

Example 1

Karen is occasionally unable to work due to severe anxiety. She sees a doctor monthly to manage her symptoms. Karen uses FMLA leave to take time off when she is unable to work unexpectedly due to her condition and when she has a regularly scheduled appointment to see her doctor during her work shift.

Example 2

Wyatt uses one day of FMLA leave to travel to an inpatient facility and attend an after-care meeting for his fifteen-year-old son who has completed a 60-day inpatient drug rehabilitation treatment program..

Also do not forget that the FMLA provides up to 26 workweeks for military caregivers to care for a covered military servicemember.

Example 3

Gordon’s spouse began to have symptoms of PTSD three years after she was honorably discharged from military service overseas. Gordon uses FMLA leave for two weeks to transport his spouse to and from outpatient treatment at a Veteran’s Administration hospital and to assist her with day-to-day needs while she is incapacitated.

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