Rates of depression have increased since the beginning of the coronavirus pandemic. Even before COVID-19, however, mental health issues were an increasing concern in the workplace. Employees may struggle when they need to treat depression. Some people might hesitate before they seek the help that they need. They might also be worried about logistical scheduling issues or may have employers that might not be understanding of the difficulties that the employees are facing. The attorneys at Swartz Swidler understand the impacts that depression can have on workers. We can help you to understand your rights to take leave to get the treatment that you need under the federal Family and Medical Leave Act.
What is the Family and Medical Leave Act?
The Family and Medical Leave Act or FMLA is a federal law that was enacted in 1993. This law allows eligible workers who work for covered employers to take up to 12 weeks off from work each year. Leave under the act is unpaid and can only be used for qualifying family or medical reasons, including the following:
- To care for the serious health condition of the employee
- To care for an immediate family member’s health condition
- To bond with a newly born, adopted, or foster care child
- An emergency related to the worker’s child, spouse, or parent who is on active duty in the military
Before you can take FMLA leave, you must meet the following criteria:
- Work for an employer that has at least 50 employees working within 75 miles of each other
- Work at least 20 weeks during the current or previous year
- Work for your employer for 12 or more months
- Work at least 1,250 hours during the 12 months before the requested leave
What rights do you have under the FMLA?
When you take FMLA leave, your job is protected. Your employer must give your former job back to you when you return or place you in an equivalent position in terms of compensation and job duties. While you will not be paid for the time that you are taking FMLA leave, your employer is required to maintain your insurance coverage during your leave. Any medical information that you provide to your employer to support your leave request must be kept confidential and separate from other records in your personnel file. Finally, your employer may not interfere with your right to take leave under the FMLA or retaliate against you for requesting or taking FMLA leave.
Requesting FMLA leave for depression
If you need to ask for FMLA leave from your employer to receive treatment for depression, you must do several things. You should start by telling your employer that you need to take FMLA leave. If your company has a procedure for requesting FMLA leave, try to follow it. In general, employees must provide a minimum of 30 days’ notice of their need to take leave. If you need to take leave unexpectedly, you are required to notify your employer as soon as possible.
While you can notify your employer orally about your need for leave, it is better for you to do so in writing. This helps to prove that you requested leave if any problems arise. Your notice should include enough information about your condition so that your employer is alerted that you need to take FMLA leave and when you intend to take it.
Your employer can ask you to provide a medical certification from your doctor about your need to take leave for depression. This certification is meant to allow your employer to confirm that you are dealing with a serious medical condition.
Under the FMLA, a serious medical condition includes an impairment, illness, injury, or mental or physical condition that requires inpatient care or ongoing treatment from a health care provider. Depression can qualify as a serious medical condition under this law. However, your depression must be incapacitating to qualify for leave.
If your employer requests medical certification, the certification might need to contain information from your mental health care provider, doctor, counselor, or therapist that demonstrates how your depression impacts your ability to work. It should also indicate how much leave you need to take. You do not have to give your employer copies of your medical records, however.
If you are asked to provide certification, you must provide it to your employer within 15 days. After you request FMLA leave, your employer will have to let you know if you qualify within five days. If your employer takes a longer time to decide whether to grant your leave request, it may be liable for interfering with your right to take FMLA leave.
In some cases, an employer might ask for more information before a decision is made. This might include calling your health care provider in a way that does not violate HIPAA to clarify the information that you provided. Your employer might also ask for a second opinion about your request. If you are asked to provide a second opinion, the purpose of it must be to validate the certification you provided. Your employer is responsible for paying for a second medical opinion.
Other options for leave
Some employers have policies in place to allow employees to take time off from work for depression. Some states also have family and medical leave laws that offer greater benefits than the FMLA. New Jersey’s family and medical leave law allows workers to take time from work to care for the serious health conditions of their immediate family members. However, this law does not allow workers to take job-protected leave to care for their own medical conditions.
If you do take FMLA leave for depression in New Jersey, you might be eligible for temporary disability benefits from the state. New Jersey’s temporary disability insurance program may replace up to two-thirds of your regular income while you are unable to return to work because of your disabling condition. However, leave under this law does not provide you with job protection.
Get help from Swartz Swidler
Many people suffer from depression during their lives. If you are struggling with depression, you might be eligible to take FMLA leave. To learn more about your rights, contact the employment lawyers at Swartz Swidler by calling us at (856) 685-7420.
