The DOL is taking FMLA for mental health conditions seriously

On Wednesday, May 25, 2022, the U.S. Department of Labor (DOL) announced a new fact sheet, FAQs, press release, and blog all focusing on employees’ rights to take FMLA leave for mental health conditions.

In the fact sheet, the DOL added the word “mental” to illustrate how the definition of a serious health condition would apply. No list of mental conditions that would qualify for FMLA leave exists. You need to apply the definition. The condition would need to require inpatient care or continuing treatment.

A serious mental health condition requiring 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.

The fact sheet also provides some examples:

• 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.
• 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.
• 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.

According to the CDC, 1 in 5 adults in the U.S. will experience a mental illness in a given year, and 1 in 25 adults in the U.S. lives with a serious mental illness, such as bipolar disorder, schizophrenia, or major depression. The COVID-19 pandemic and the resulting economic pressures on workers have only increased the prevalence of mental health conditions, including anxiety, and depression.

Friends, don’t be surprised if you see an increase in leave requests for mental health conditions, if you haven't already. Treat such leave requests as you would those for a physical condition. According to the DOL, “we all have a role to play in promoting mental-health friendly workplaces.”