Nearly one in 20 U.S. adults experience a serious mental illness each year, according to the latest data from the National Alliance on Mental Illness. As a result, employers should take time to understand their legal obligations regarding leave requests, including under Family Medical Leave Lawfrom employees related to their mental health.
FMLA only covers mental health conditions that rise to the level of a serious medical condition. This includes inpatient care in a hospital, hospice or residential medical care facility, or continued treatment by a health care provider that prevents the employee from performing the functions of his position.
Any mental health condition has the potential to qualify as a serious mental health condition, including depression and anxiety. Workplace stress can even rise to this level under certain circumstances.
However, a diagnosis alone is not enough to trigger an employer’s obligations. Many mental health conditions are on a spectrum, with variations ranging in severity. Whether an employee’s condition qualifies for FMLA leave must be determined on a case-by-case basis.
Employers should consider whether the mental illness:
- It continues for a long period of time
- Requires periodic visits to the doctor because of or to prevent episodes
- Episodes prevent the employee from performing regular daily activities
If so, the situation is quite serious.
On the other hand, when there is no ongoing treatment, no period of disability, or no chronic impairment, then the mental health condition is not severe enough. Likewise, acute medication side effects do not qualify as a serious medical condition, although chronic ones may.
It is very easy for employees working for covered employers to give notice of intent to take FMLA leave for serious mental health conditions. Employees are not required to understand when they can take FMLA leave, explicitly state that they intend to take FMLA leave, or even know that FMLA exists.
An employee must inform their employer of the specifics of their mental health condition in a way that makes it reasonably clear that the condition is serious and show the employer the reason for their absence.
However, employees must do more than simply declare that they have a mental illness for an employer to be considered “on notice” of a serious mental health condition. In general, an employee must provide details about the mental condition, including its severity and any disabilities that may occur.
When an employee has a drastic and noticeable change in behavior or mood, an employer can be considered “on notice” without this disclosure.
On the other hand, if an employer already has “notice” of a serious mental health condition, such as because an employee has previously taken leave to receive treatment, then an employee may simply inform the employer that he or she needs leave for the same mental illness, even if the employee does not specify the severity for each leave request.
An employee saying “I’m sick” is insufficient.
If an employee requests FMLA leave for a serious mental health condition, the same obligations begin as with any other serious health condition, including employer notification and determination obligations.
For FMLA leave, employers may require medical certification of a serious mental health condition. However, employers should remember their confidentiality obligations under the FMLA and the FMLA Americans with Disabilities Act when requesting, obtaining and storing medical information about employees.
In addition, a serious mental health condition may require an employer to allow extended periods of leave, or may require intermittent or reduced vacation time. However, Court “They have been reluctant to read the FMLA as permitting unscheduled and unforeseeable but cumulatively substantial absences,” according to Judge Frank Easterbrook.
Employers should also be aware that individual states and municipalities may have different mental health leave requirements that are more extensive in terms of the employer’s obligations or the conditions that are covered.
Further, employers should consult with competent legal counsel to review the interaction of leave laws with the ADA, workers’ compensation laws, Occupational Safety and Health Administration laws, and other related laws.
Just because an employee has exhausted their FMLA leave does not necessarily mean that they are not entitled to other leave under another law.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Information about the author
Sarah M. Saint is an employment attorney at Brooks Pierce. She advises on FMLA mental health conditions and litigates on behalf of public and private educational institutions and school boards on a variety of education law issues.