FMLA and mental health — what you need to know as an employer

Do you have an employee looking to take FMLA for mental health? You’re in the right place. Even if an employee has a family member who suffers from mental health issues, they may be eligible for FMLA leave to help them deal with their issues. We’re here to give you all the tips and guidelines you need to know about taking FMLA for mental health reasons.

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In this article, we’ll discuss:

  • Instances where an employee can take FMLA for mental health.
  • The process for taking FMLA.
  • Tips for preventing discrimination in the workplace.

Mental health issues are no joke. Severe depression, anxiety disorders, mental disability/mental health disorders, schizophrenia, mental impairment, post-traumatic stress disorder, major depression, and bipolar disorder are serious health conditions that sometimes require medical leave and/or reasonable accommodations to be adequately dealt with. So, what do you need to know?

What Is FMLA?

The Family And Medical Leave Act (FMLA) is an employment law that entitles employees to up to 12 workweeks of unpaid leave (leave of absence) for instances like medical leave, childbirth, mental illness, inpatient care, taking care of a family member, etc…

After the 12-week period of leave has been taken, the employer is obligated to give the employee the same or an equal position at their job.

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FMLA leave resets after a 12-month period, though how that period is determined depends on your business policy (see more on FMLA Calendars). FMLA leave does not have to be taken in a single period. Instead, employees may also take Intermittent FMLA leave, this is especially important for mental health conditions. That means the employee could break up the time into smaller pieces allowing them to leave work for therapy sessions, doctor appointments, etc…

Here are some other instances where FMLA leave can be taken:

  • Birth of a child
  • Serious health conditions
  • Inpatient care
  • Foster care
  • Taking care of a person with a serious health condition
  • Adoption

Who can take FMLA for mental health?

General FMLA Qualifications

Qualifying for FMLA leave depends on the company, and how long the employee has worked for the company. Private employers and government employers have slightly different criteria. There is a set of requirements that must be met for a worker to be considered an eligible employee. The employee must:

  • Have worked for the employer for at least 12 months. Breaks in service are allowed as long as they are for less than seven years.
  • Worked at least 1,250 hours of service for the employer within the last 12 months. Thus, some part-time workers are covered if their hours total 1,250 for the year
  • Works at a location where the employer has at least 50 employees within 75 miles.

If they meet these criteria, then they are eligible for FMLA leave.

Qualifying mental health conditions

The Department of Labor (DOL) has touched on what mental health conditions may qualify for FMLA leave in updated guidance. A mental health condition is considered a protected “serious health condition” if the employee resources “inpatient care OR continuing treatment by a health care provider.”

A mental health condition requiring inpatient care is likely to be more cut and dry. This might include things like a stay at a medical facility for an eating disorder, addiction, or some other crisis-level event that leaves an employee unable to work.

A mental health condition requiring continual treatment is much broader. The two guidelines the DOL provides are:

  • 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.

As you can see, these guidelines can be fairly broad, meaning a number of conditions could qualify for such protection. An employee who regularly attends therapy for a mental health condition, can generally do so with FMLA leave. In addition, they would qualify for leave when their condition flares up, as long as the proper FMLA process has been fulfilled.

Caring for a family member

Employees can take FMLA leave to care for a family member needing surgery or physical therapy. This also applies to mental health conditions. If a child, spouse, or parent is unable to perform regular daily activities because of a serious mental health condition, FMLA leave may be taken to support that individual. This can also apply to employees attending doctors appointments and other treatment sessions with that individual.

Typically, such care only applies to children under 18. However, if an adult child’s mental health condition leaves them incapable of self-care, then the employee also qualifies for FMLA protected leave.

Intermittent FMLA Leave

Employees with mental health challenges are good candidates for Intermittent FMLA Leave. This is leave that is taken in chunks spread out over time, instead of in one large sum. The process works similarly, for example, requests should be submitted with at least 30 days’ notice when possible. As part of the process, you should try to lock in the expected frequency and duration of the intermittent leave.

This leave can then be used for things like doctor’s appointments, therapy sessions, etc… However, employers may request that employees try to schedule such things when it’s less disruptive for the employer. For example, you may ask that an employee tries to make appointments at the beginning or end of the workday instead of mid-day. However, it can also be used for unexpected disruptions. Here’s one example the DOL provides:

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.”

Because mental health challenges can vary as to when they pop up, like in the example above, Intermittent Leave is a good option. However, it also is at risk of being abused. Does an employee frequently have an “incident” on Mondays/Fridays, creating frequent long weekends? If you fear an employee is abusing the system, then you may ask for recertification. This allows you to go through the medical certification process again to verify that the employee still legitimately needs leave.

What’s the process when filing for FMLA leave for mental health?

Now that you know the basics for FMLA qualification, it’s time to determine eligibility. Here’s how it works.

Step 1 – Employee gives notice to employer

The first step in the FMLA is for notice to be provided from the employee to the employer. Notice for leave should generally be given at least 30 days before the leave is needed. When the need for leave is foreseeable less than 30 days in advance or is unforeseeable, employees must provide notice as soon as possible and practicable under the circumstances.

It is important to note, however, that an employee need not reference FMLA leave by name. If an employee notifies a supervisor that they need time off for an FMLA-qualified reason, the supervisor is responsible for acknowledging it as FMLA-protected leave.

Step 2 – Notice of eligibility/rights and responsibilities notice (Form WH-831)

An employer must respond to a request for FMLA leave within 5 days. The first step in filing for FMLA leave is filling out the Notice Of Eligibility form. This form notes if an employee meets the basic criteria qualifying them for FMLA leave. Additionally, Form W-831 lets you request documentation for any additional information that may be necessary. For example, an employee may need to include documentation proving their relationship to the family member they’ll be taking care of.

The notice of eligibility form also informs employees of their rights and responsibilities when filing for leave. In addition, it includes general information like guidelines that an employee can substitute unpaid leave with accrued paid leave.

At this point, you may wish to provide a medical certification form as well (Form WH-380-E/WH-380-F). This form allows you to request additional information about the condition, to help inform your decision. Employers have a right to request medical information from second and third opinions (at their own expense) if they feel the need to verify the information given by the employee.

It is important to note that, while you may request medical certification from a mental healthcare professional, such as an employee’s psychiatrist, a mental health diagnosis is not required. This means that an employee could qualify for FMLA leave for anxiety, without necessarily being diagnosed with an anxiety disorder, as long as the medical certification meets the needed criteria.

If the employer already has adequate information on the employee’s condition, they may opt to skip the medical certification form.

Step 3 – Designation Notice (Form WH-832)

Employers have 5 business days to provide a designation notice approving or denying an employee’s leave from the date a medical certification form is submitted. If the employer skips the certification process, then they should provide the Designation Notice when they provide the Notice of Eligibility.

FMLA or ADA

Many of the conditions noted here could qualify as disabilities under the ADA. Generally speaking, FMLA leave applies when leave is needed, whereas the ADA considers accommodations to help an employee keep working.

For example, an employee with a mental health condition may not need the day off when it flares up, but may instead do fine working from home. In that case, flexible work arrangements could be considered a reasonable accommodation under the ADA. If insomnia makes it hard for an employee to get up in the morning, then flexible working hours could be a reasonable solution. Let the employee start later and work later, instead of having to take leave for those morning hours.

Most things should fit neatly into one category or the other. However, flexible leave for mental health conditions, treatment, appointments, and more can also fall under the ADA. In this case, it’s important to note that the ADA and FMLA are not mutually exclusive. That means an employee’s leave could be protected under both. It also means that an employee who has used up their FMLA leave may still have protection under the ADA.

Let’s look at 2 examples.

FMLA for depression

Is an employee looking to take FMLA for depression? As we’ve already established, they’re probably a good candidate for Intermittent FMLA Leave. However, depression could also fall under the Americans with Disabilities Act (ADA). It’s important to consider both options.

First, you may wish to consider reasonable accommodations under the ADA to avoid the need for FMLA leave. An employee is in the midst of a depressive episode, may be able to work from home. If it causes them to suffer from insomnia, consider allowing them to start later in the day.

If an employee is unable to work some days because of their depression, you may still consider allowing leave under the ADA. However, if this time starts to add up, it may be best to formalize it with FMLA paperwork. This will help keep track of the leave, and could help limit how much leave is taken. This also allows you to go through the medical certification process. Doing so provides more documentation verifying the employee’s depression and its impact on their ability to work.

Additionally, employees under ADA accommodations or on intermittent FMLA leave should still be held accountable for following call-out rules. If they simply don’t show up to work and don’t notify anyone, they can still be punished for doing so. Make all call-out rules and how to adhere to them clear.

FMLA for anxiety

Similarly, an employee with anxiety issues may also qualify for FMLA leave. However, the ADA may at times be a better solution. In most cases, an employee suffering from such issues should consult a doctor. Simply claiming that they’re suffering from an anxiety attack, for example, may not immediately qualify them for protection under either law. In that case, a condition should be established through pre-approved Intermittent FMLA leave. That will provide the most protection if such events occur regularly.

Still, in most cases, an anxiety disorder is more likely to fall under the ADA and there may be reasonable accommodations that can be made to work with that employee. It’s important to note, as well, that employees do not need to request ADA accommodations formally to be protected by the ADA. An employee calling out because of a panic attack, may be protected by the ADA if they’re able to establish a real disability. In such cases, it’s best to try and work with the employees instead of moving quickly to punitive actions.

Help prevent discrimination in the workplace

Mental health is something that shouldn’t be taken lightly. Employers should take mental health requests for FMLA every bit as much as requests for physical injury. This includes keeping information confidential. Discrimination in the workplace is always a serious risk. That’s why it’s important to keep employee information confidential from co-workers.

Educate employees about the ADA

Ensure that managers understand the American Disabilities Act of 1990, a law designed to protect Americans who suffer from certain disabilities. Mental health conditions can often fall in a grey area between the ADA and the FMLA. That’s why it’s important to at least have a working knowledge of both. Cases of discrimination or retaliation could arise from the mistaken actions of even the most well-meaning managers.

For example, managers should not mention an employee’s mental health condition in things like performance reviews. Implying that a performance issue could be related to a protected condition could be crossing a legal line. Beyond that, comments about a protected condition could also come back to bite you. Something well-intentioned like “I didn’t schedule you for that big event, because I figured it might trigger your anxiety” could be seen as discrimination. Unless an employee asks for specific accommodations, don’t treat them differently.

Additionally, it’s vital that such information is kept completely confidential. Another employee at your workplace might wonder why someone is out frequently. While that employee may opt to share their situation with coworkers, the organization should not.

Protect yourself with documentation

Mental health problems could be ripe for discrimination charges. It’s important to carefully document employee performance in an objective way. If an employee is falling behind on work, take note of that. Keep in mind any accommodations made, or leave taken that’s protected either via the FMLA or ADA.

If you ever find yourself in a situation where you need to terminate the employee, you’ll need to show it’s not discrimination because of a protected condition. Good documentation helps ensure that.

Treat all cases similarly

If employees have taken FMLA leave for physical health conditions like surgery, illness, or something else, don’t treat employees with mental health conditions differently.

For example, if you allow an employee recovering from a major surgery to take extra time off after their FMLA leave runs out, be careful about not extending the same offer to an employee suffering from a mental health crisis. All policies should be applied evenly, otherwise, it may look like discrimination.

Seek legal advice when in doubt

Mental health conditions can be more complicated to navigate than physical health conditions. With that in mind, you may wish to consult your attorney before making any final decisions. Most large companies likely have in-house attorneys, or a firm they work with frequently. Smaller businesses may opt to get legal consultation for a tricky case. While it may be expensive initially, the attorney fees will be far less than court fees would be.

Additional resource: Read more about FMLA requirements and what they mean for your business.

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