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The Department of Labor on Mental Health Conditions and the FMLA

By Nina Terenzi, Jan. 05, 2023
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The Family Medical Leave Act (FMLA) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons. In May 2022, to coincide with National Mental Health Month, the Department of Labor (DOL) issued Fact Sheet 280 and a new FAQ to confirm that the FMLA does in fact provide job-protected leave for employees and their family members when coping with certain mental, as well as physical, conditions. While no additional laws or recommendations were introduced, the documents highlighted relevant aspects of the FMLA and provided detailed examples to illustrate eligible mental health conditions. Below, Eastern Insurance Group presents a general summary with highlights from Fact Sheet 280 and the FAQ.

The FMLA in Brief

The FMLA mandates that covered employers must provide eligible employees up to 12 weeks of unpaid leave during a 12-month period if they need to manage their own serious health condition or the health condition of a spouse, parent, or child under 18. Other protected events include childbirth, adoption, child placement, and care of a child over the age of 18, if the child is incapable of self-care due to disability.   

Serious Heath Conditions Defined

“Serious health conditions” under the FMLA include any illness, injury, impairment, physical or mental condition that involves inpatient care in a hospital, hospice, or residential medical care facility or ongoing treatment by a health care provider. 

Serious mental health conditions may include but aren’t limited to:

  • Conditions that incapacitate the individual for more than three consecutive days
  • Multiple consultations with a psychiatrist, clinical psychologist, or social worker
  • A single appointment followed by ongoing care (behavioral therapy, rehab counseling, pharmaceutical treatment)
  • Chronic conditions such as depression, anxiety, or anorexia nervosa that occasionally incapacitate the individual and require treatment by a healthcare professional at least twice yearly

Disabilities Defined

A “disability,” as defined by the FMLA, is a physical or mental impairment that substantially limits one or more of the major activities of an individual’s life. This definition has origins in Equal Employment Opportunity Commission (EEOC) regulations established under the Americans with Disabilities Acts (ADA).

Substantially limiting mental disabilities may include but aren’t limited to:

  • Major depressive disorder
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive compulsive disorder
  • Schizophrenia

Accepted Reasons for Protected Leave

The Employee’s Mental Health Condition

An eligible employee may take leave for up to 12 work weeks to manage their own

serious health condition whenever it makes them unable to perform their

essential job duties.

Mental Health Example from Fact Sheet 280

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.

Care for Family Member with a Mental Health Condition

Employees may take leave to provide care for a spouse, child, or parent who is unable to work or perform other regular daily activities because of a serious health condition. Services considered “care” include psychological comfort and reassurance for a family member who is receiving inpatient or home care for a serious health condition. FMLA leave for the care of a child with a serious health condition is generally limited to providing care for a child under the age of 18.   

Mental Health Example from Fact Sheet 280

Wyatt uses one day of FMLA leave to travel to an inpatient facility and attend an after-care meeting for his 15-year-old son who has completed a 60-day inpatient drug rehabilitation treatment program.

Care for an Adult Child with a Mental Health Condition

A parent may use FMLA leave to care for a child 18 years of age or older who is in need of care because of a serious health condition, if the individual is incapable of self-care because of a physical or mental disability. For practical purposes, some mental health conditions may satisfy both the definition of “disability” and the definition of “serious health condition,” even though the statutory tests for each are different.

Mental Health Example from Fact Sheet 280

Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and was recently released from several days of inpatient treatment for a mental health condition. She is unable to work or go to school and needs help with cooking, cleaning, shopping, and other daily activities as a result of the condition.    

Military Caregiver Leave

Under the FMLA, an employee may use Military Caregiver Leave 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” in the context of Military Caregiver Leave is one that was incurred in the line of 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 service member becomes a veteran—as may be the case with post-traumatic stress disorder (PTSD), a traumatic brain injury, or depression.

Call your Eastern Insurance Advisor Today

While issuing no additional laws or recommendations, the DOL’s Fact Sheet 280 and FAQ offered increased clarity about protected leave for mental health conditions under the FMLA. Reviewing the documents online will give you a complete overview of the DOL’s guidance. Talk to an Eastern Insurance Advisor today to discuss the FMLA’s stance on mental health conditions and to make sure your current insurance policies are aligned with your overall business strategy. Call us today at 877-542-7267 or email us at employeebenefits@easterninsurance.com.

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