Five ways that employers botch FMLA for mental health conditions (and how to get it right instead)


May is Mental Health Month. The U.S. Department of Labor’s Wage and Hour Division, which enforces the Family and Medical Leave Act, just dropped some additional resources for workers on their rights to take leave for serious mental health conditions and for employers to better understand how to comply with the FMLA.

The newly published guidance includes Fact Sheet # 28O: Mental Health Conditions and the FMLA and Frequently Asked Questions on the FMLA’s mental health provisions (which is re-purposed from this earlier FAQ).

Now, my clickbait-y title promised pitfalls and how to avoid them. So, let’s dig into the new guidance and see what we’ve got.

Regular doctor visits to treat anxiety

An eligible employee may take FMLA leave for their own serious health condition or to care for a spouse, child, or parent because of a serious health condition. A serious health condition can include a mental health condition.

But there’s more to it than just that.

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

For example, chronic conditions (e.g., anxiety, depression, or dissociative disorders) qualify when they cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year.

Therefore, if one of your employees who can’t work due to severe anxiety sees a doctor monthly to manage her symptoms, the FMLA requires you to offer this otherwise eligible employee FMLA leave when she cannot work unexpectedly due to her condition.

The same holds if she has a regularly scheduled appointment to see her doctor during her work shift. However, the employee must provide 30-day advance notice of the need to take FMLA leave when the need is foreseeable and such notice is practicable. And when leave is needed for planned medical treatment, the employee must make a reasonable effort to schedule treatment so as not to disrupt the employer’s operation unduly.

Helping a child in recovery

Employees can also take FMLA leave to care for a spouse, child, or parent who cannot work or perform other regular daily activities because of a serious health condition. Providing care includes providing psychological comfort and reassurance that would benefit a family member with a serious health condition receiving inpatient or home care.

This includes employees who care for kids in addiction recovery. For example, if your employee needs a 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, you should provide it. Again, this is subject to the same eligibility and notice requirements.

Leave to Care for an Adult Child with a Mental Health Condition

FMLA generally does not cover leave to care for adult children. However, a parent may use FMLA leave to care for a child 18 years of age or older who needs care because of a serious health condition if the individual is incapable of self-care because of a mental or physical disability.

So, unwary employers — none of your businesses, I’m sure — may forego FMLA for an employee to care for an adult child who was recently released from several days of inpatient treatment for a mental health condition, who cannot work or go to school, and needs help with cooking, cleaning, shopping, and other daily activities because of the condition.

But you won’t make that mistake.

Military Caregiver Leave for Mental Health Conditions

Let’s say that an employee’s spouse develops symptoms of PTSD three years after her honorable discharge from military service overseas. That employee requests FMLA leave for two weeks to transport his spouse to and from outpatient treatment at a VA hospital and assist her with day-to-day needs while incapacitated.

One of those other companies may not recognize that the FMLA also provides eligible employees with up to 26 workweeks of military caregiver leave in a single 12-month period to care for a covered servicemember and certain veterans with a serious injury or illness.

But not yours. You will offer the leave to an eligible employee, make him complete the FMLA paperwork, and provide the time off.

Keeping mental health conditions confidential

The FMLA requires employers to keep employee medical records confidential and maintain them in files separate from more routine personnel files.

Can you tell an employee’s manager that her direct report will be out of work or if they have work restrictions? Sure. But don’t divulge the medical condition.

If you want to learn more about the FMLA, check this out, and explore this FMLA Compliance Assistance Toolkit.

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