Q. One of my employees recently informed me that she needs to take time off to seek psychiatric treatment. I realize that this employee may be disabled under the ADA, but could she also be considered to be suffering from a serious health condition under the?
A. Mental impairments may constitute a disability under the ADA. The statute specifically states that a disability includes “a physical or mental impairment that substantially limits one or more of the major life activities” of an individual. California’s Fair Employment and Housing Act (FEHA) defines “mental disability” even more broadly to include “any mental or psychological disorder.” So, presuming that a mental condition is a covered disability may be the safest course.
Under the FMLA, an employee is entitled to 12 weeks of unpaid leave to care for his or her “serious health condition.” The regulations interpreting the FMLA list several different circumstances under which a physical or mental condition may be covered by the statute.
One such circumstance is continuing treatment by a health care provider for a period of incapacity of more than three consecutive calendar days that also involves “treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.” The regulations provide that an incapacity includes an inability to “perform any of the essential functions of the employee’s position within the meaning of the [ADA].”
Thus, your employee may be eligible forif she is unable to perform the essential functions of her job and is receiving treatment from a psychiatrist who has placed her on drug therapy treatment.
If your employee states that she may require inpatient care for her psychiatric condition, she may also be entitled to FMLA leave for that period.
As with other requests for FMLA leave, you should require a medical certification from a health care provider verifying that she is suffering from a serious health condition.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Consider extended leave as accommodation if disabled employee is likely to return to work
- Treat FMLA policy changes with care, communication
- Start of absence, not approval date, sets 12-week FMLA clock ticking
- ADA accommodation: Not a one-shot deal