Department of Labor issues guidance on mental health protections under Family Medical Leave Act

The United States Division of Labor, Wages, and Hours (“DOL”) recently released guidance on the mental health protections available under the Family Medical Leave Act (“FMLA”).

FMLA allows eligible employees to take unpaid job-protected leave to treat certain serious health conditions, including those due to mental health issues.[1] The new guidelines do not establish additional obligations for employers, but rather provide examples to help employers better understand how to comply with the law, including a fact sheet and Frequently Asked Questions on the FMLA’s applicability to mental health.

Under the FMLA, eligible employees can take up to 12 weeks of leave:

  • For their own serious mental health condition which renders the employee unable to perform the essential functions of their job, or;
  • To care for a spouse, child or parent who is unable to work or perform other regular daily activities due to a serious mental health condition.

Mental health conditions are considered serious medical conditions under the FMLA if they require (1) hospital care or (2) ongoing treatment by a health care provider. A serious mental health condition requiring hospital care includes an overnight stay in a hospital or other medical care facility. A serious mental health condition that requires ongoing treatment by a health care provider includes: (1) conditions that render a person incapacitated for more than three consecutive days and require ongoing medical treatment, i.e. multiple appointments you with a health care provider, including a psychiatrist, psychologist, or clinical social worker, or a one-time appointment and follow-up care (eg, or (2) chronic conditions (eg, anxiety, depression or dissociative disorders) that cause occasional periods of incapacitation of an individual and require treatment by a health care provider at least twice a year and recur over a long period of time.

Common mental health conditions that may be covered by FMLA include, but are not limited to, severe anxiety, depression, post-traumatic stress disorder, and obsessive-compulsive disorder.

The DOL noted that an employee eligible for FMLA leave may use that leave to care for a child if the child is unable to care for themselves due to a disability as defined by the Americans. with Disabilities Act (“ADA”), or has a serious medical condition and requires treatment. The DOL explained that a “disability” is a mental or physical condition that significantly limits one or more major life activities, and is different from a “serious medical condition” as defined by the FMLA.[2]

Employers should understand their legal obligations regarding the treatment of mental health issues under the FMLA.

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