DOL Spotlights Mental Health Coverage in New FMLA Guidance

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DOL Guidance Points

Coverage

An eligible employee may take FMLA leave for their own serious health condition or to care for a spouse, child, or parent because of a serious health condition. A serious health condition can include a mental health condition.

Eligible employees

Employees are eligible if they work for a covered employer for at least 12 months, have at least 1,250 hours of service for the employer during the 12 months before the leave, and work at a location where the employer has at least 50 employees within 75 miles.

Covered employers

Private employers are covered employers under the FMLA if they employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year, including joint employers or successors in interest to another covered employer.

Public agencies, including a local, state, or Federal government agency, and public and private elementary and secondary schools are FMLA covered employers regardless of the number of employees they employ.

Inpatient care

A serious mental health condition that requires inpatient care includes an overnight stay in a hospital or other medical care facility, such as, for example, a treatment center for addiction or eating disorders.

Continuing treatment

A serious mental health condition that requires continuing treatment by a health care provider includes:

Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment or a single appointment and follow-up care.

Chronic conditions that cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year.

Certification

An employer may require an employee to submit certification from a health care provider to support the employee’s need for FMLA leave, but a diagnosis is not required.

Example of leave for an employee’s mental health condition

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.

Example of leave to care for a family member with a mental health condition

Wyatt uses one day of FMLA leave to travel to an inpatient facility and attend an after-care meeting for his 15-year-old son who has completed a 60-day inpatient drug rehabilitation treatment program.

Example of leave to care for an adult child with a mental health condition

Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and was recently released from several days of inpatient treatment for a mental health condition.

She is unable to work or go to school and needs help with cooking, cleaning, shopping, and other daily activities as a result of the condition.

Example of military caregiver leave for mental health conditions

Gordon’s spouse began to have symptoms of PTSD three years after she was honorably discharged from military service overseas. Gordon uses FMLA leave for two weeks to transport his spouse to and from outpatient treatment at a Veteran’s Administration hospital and to assist her with day-to-day needs while she is incapacitated.

Military caregiver leave certification

An employer may require that a request for military caregiver leave be supported by a certification. The certification may be completed by a Department of Defense, Veterans Affairs, or TRICARE health care provider, or by a private health care provider if the provider meets the FMLA definition.

Confidentiality

The FMLA requires employers to keep employee medical records confidential and retain them in separate files from routine personnel files

Protection from retaliation

Employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. Any violations of the FMLA or the FMLA regulations constitute interfering with, restraining or denying the exercise of rights provided by the FMLA. Examples include:

Refusing to authorize FMLA leave or disclosing or threatening to disclose information about an employee’s or an employee’s family member’s mental health condition to discourage them from taking FMLA leave.

Helping care for a family member

An employee does not need to be the only individual or family member available to help us FMLA for a family member’s care. Caring for a family member under the FMLA includes helping with basic medical, hygienic, nutritional, or safety needs, and filling in for others who normally provide care.