By Luke P. Breslin, Principal (908-795-5200) with Jackson Lewis P.C. 

On May 25, 2022, during Mental Health Awareness Month, the Wage and Hour Division (WHD) of the Department of Labor, the agency responsible for enforcing the Family and Medical Leave Act (FMLA), issued Fact Sheet # 28O and related Frequently Asked Questions, which discuss mental health and leaves of absence under the FMLA. The publications do not create new law or obligations on employers, but provide detailed discussion, including hypothetical fact-patterns, explaining when an employee may be entitled to a job-protected leave of absence under the FMLA for their own mental health condition, or when they are providing care for a family member with a mental health condition. 

In this guidance, the WHD explains that an eligible employee may take job-protected leave under the FMLA for their own “serious health condition or to care for a spouse, child or parent because of a serious health condition” and that a serious health condition can include a “mental health condition.” Mental and physical health conditions are serious health conditions under the FMLA if they require “1) inpatient care or 2) continuing treatment by a health care provider.” The DOL (Department of Labor) explains in the Fact Sheet that serious mental health conditions requiring continuing treatment by a healthcare provider include: 

• “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 provides specific examples of when mental health conditions would be covered under the FMLA for an employee’s own mental health condition, when caring for a family member under the age of 18 with a mental health condition, and when caring for a family member over the age of 18 with a mental health condition. 

Fact Sheet #28O explains that the FMLA also provides eligible employees with up to 26 weeks of military caregiver leave to care for a covered servicemember and certain veterans with a serious injury or illness. A serious illness or injury for current servicemembers is one that was incurred in the line of duty “that may make the servicemember medically unfit to perform the duties of their office, grade, rank or rating” or results from the “aggravation in the line of duty on active duty of a condition that existed before the member began service.” With respect to veterans, a serious injury or illness is one that makes the veteran “medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veteran Affairs or substantially reduces the veteran’s ability to work.” Serious illness or injuries for veterans also include those “incurred or aggravated during military service but that did not manifest until after the veteran left duty” such as post-traumatic stress disorder (PTSD) or depression. 

Finally, Fact Sheet #28O and the related FAQs reiterate the FMLA requirements that employers keep employee medical records, including any records regarding an employee’s mental health condition, confidential and separate from “more routine personnel files” and reinforce the FMLA’s anti-retaliation protections. 

If you would like to learn more about how to safely outsource compliance and HR functions, contact us.   

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