The Department of Labor (“DOL”) has released Fact Sheet 280 (“Fact Sheet”) and a series of FAQs with regards to the interplay between the FMLA and mental health conditions.
Law. Under the FMLA, certain employers must provide eligible employees with up to 12 weeks of unpaid leave during a 12-month period: for their own serious health condition; to care for the serious health condition of a spouse, child under 18, or parent; for childbirth, adoption or placement of a child; and for military caregiver leave and military exigency leave. A parent may also use FMLA leave to care for a child 18 years of age or older who is in need of care if the child is incapable of self-care because of a mental or physical disability.
The FMLA defines a “serious health condition” as an illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility or continuing treatment by a health care provider. A serious health condition can include a mental health condition.
Fact Sheet. The Fact Sheet states that some mental health conditions may satisfy both the definition of “serious health condition” and the definition of “disability,” even though the statutory tests are different.
DOL recognizes that under the FMLA, a disability is a mental or physical impairment that substantially limits one or more of the major life activities of an individual. To define these terms and determine if a condition is a disability, the FMLA uses the Equal Employment Opportunity Commission’s (“EEOC’s”) regulations under the Americans with Disabilities Act (ADA). According to the EEOC, conditions that “should easily be concluded” to be “substantially limiting” include major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia.
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 (g., prescription medication, outpatient rehabilitation counseling, or behavioral therapy); and
- Chronic conditions (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.
FAQs. In the FAQs, DOL states that, “A chronic condition whether physical or mental (e.g., rheumatoid arthritis, anxiety, dissociative disorders) that may cause occasional periods when an individual is unable to work is a qualifying serious health condition if it requires treatment by a health care provider at least twice a year and recurs over an extended period of time.” The same criteria would apply to someone being treated for anorexia nervosa.
An example provided in the FAQs confirms that an employee may take FMLA leave when her 24-year-old daughter is released from inpatient care but is unable to go to work or school and needs help with basic household chores.
In another example, an employee is entitled to use FMLA leave to attend a family counseling session for a family member who is in an inpatient treatment program for substance abuse. Care could include participating in the family member’s medical treatment program or attending a care conference with health care providers.
Similarly an employee may use military caregiver leave under the FMLA to care for a relative who is a covered veteran undergoing treatment, recuperation, or therapy for a serious injury, or illness, including a mental health condition. A serious injury or illness is one that was incurred in the line of duty when the veteran was on active duty in the Armed Forces, including any injury or illness that resulted from the aggravation of a condition that existed before the veteran’s active duty service. The condition may manifest itself during active duty or may develop after the servicemember becomes a veteran, as may be the case with post-traumatic stress disorder (or PTSD), a traumatic brain injury, or depression, for example.
Fact Sheet 280 can be found at: www.dol.gov/agencies/whd/fact-sheets/28o-mental-health.
The FAQs can be found at: www.dol.gov/agencies/whd/fmla/mental-health.