Anxiety, depression, and extreme stress can affect all aspects of your life, including your job. To be productive, you must prioritize your mental health to remain ready and able to work. In some cases, anxiety, depression, or other types of mental health conditions will require people to take time off from work. The federal Family and Medical Leave Act (FMLA) will cover job-protected, unpaid leave for mental health conditions that qualify as serious health conditions under the law for eligible employees working for covered employers.
Under the FMLA, eligible employees who work for employers with 50 or more employees can take as much as 12 weeks off from work to attend to their serious health conditions or those of their immediate family members. While they are on leave, their jobs will be protected. This means that you can return to your position or a comparable job in terms of pay, benefits, and opportunities for advancement at the end of your leave. Your employer must also continue your health insurance while you are away from work. At Swartz Swidler, our employment attorneys have provided information about the FMLA and mental health conditions.
Guidance from the U.S. Department of Labor
The Wage and Hour Division of the U.S. Department of Labor issued guidance on May 25, 2022. This guidance includes information about when an employee can take leave under the FMLA for a mental health condition.
Understanding the FMLA
The FMLA covers public employers in every state and private employers with at least 50 employees working within a 75-mile radius who work at least 20 weeks per year. Employees who work for these employers are eligible under the FMLA if they have worked for a minimum of 1,250 hours and a minimum of 12 months for a covered employer. While the leave is unpaid, it is job-protected. This means that employees who come back to work after taking leave under the FMLA must be returned to their jobs or comparable positions with the same benefits, terms, and pay. Employees can take leave under the law to attend to their serious health conditions or those of their family members.
Mental Health Conditions Under the FMLA
According to the guidance issued by the Wage and Hour Division, mental health conditions can be considered serious health conditions under the FMLA. Mental or physical health conditions are considered serious under the FMLA when they require ongoing treatment by a medical provider or inpatient care. This might include time spent in a residential facility to treat a mental health condition or substance use disorder. Continuing treatment includes regular counseling by a licensed psychiatrist, psychologist, or clinical social worker.
A serious mental health condition includes a condition that incapacitates the person for at least three consecutive days and chronic conditions such as depression, anxiety, and others that cause intermittent incapacitation that requires treatment at least two times per year. An eligible employee might qualify for intermittent leave to attend appointments or continuous leave for up to 12 weeks to receive care. They might also qualify to take time off from work to care for a close family member who is suffering from a serious mental health condition.
Under the FMLA, a parent is generally only allowed to take leave to care for a minor child’s serious condition. However, if an adult child has a serious health condition meeting the definition of a disability under the Americans with Disabilities Act (ADA), the employee should still be allowed to take leave under the FMLA to care for them. Employees with military family members or veterans who are experiencing post-traumatic stress disorder (PTSD) or depression should also be granted leave when they need to care for them.
Employers and FMLA for Mental Health Conditions
When you request leave under the FMLA for a mental health condition, your employer can ask you to get a certification from your doctor to support your need to take time off from work for your mental health condition. The information included in your certification must be enough to support your leave request, but it doesn’t have to include your diagnosis. Your employer must keep your medical records in a separate file away from your personnel file and keep the information confidential. A human resources officer can advise a supervisor or manager that you need to take leave or that you will need accommodations. Employers can’t retaliate against you for taking leave under the FMLA or interfere with your ability to exercise your FMLA rights. If your employer violates your rights under the FMLA, you can file a complaint with the help of an employment lawyer.
Mental Health in the Workplace
In the past, people who experienced mental illness were viewed as unproductive or lazy in the workplace. However, the stigma surrounding mental health conditions has greatly decreased. Fortunately, the FMLA protects you if you work for a covered employer and are otherwise eligible for leave and need to take time off from work to address your qualifying mental health condition. This helps to ensure that you can get the help you need without fear of losing your job because of your mental health condition.
Talk to Swartz Swidler
If your employer refused your request to take leave for a serious mental health condition or retaliated against you for exercising your FMLA rights, you should speak to the experienced lawyers at Swartz Swidler. Call us for a free case evaluation at (856) 685-7420.
