FMLA and Mental Health: What Points Employers Must Know, Part 2 

In 2022, more Americans than ever are struggling with mental health issues.  During the pandemic, conditions like depression and anxiety have become particularly widespread.  As a result, employers are more likely to encounter circumstances where employees need FMLA leave for a mental illness.  Though it’s more commonly used for physical medical issues, the Family and Medical Leave Act (FMLA) allows eligible employees to take a protected leave of absence or intermittent leave if they need to care for a family member or if they’re unable to work due to their own serious medical condition.  Serious medical conditions that qualify for FMLA leave include mental illness, like bipolar disorder.  Additionally, employers should be aware that other laws, such as the Genetic Information Nondiscrimination Act (GINA), or The Americans with Disabilities Act (ADA), may apply in these scenarios.  These laws protect employees’ rights to privacy, dictate how medical records must be handled, and more.  In part two of this two-part series, MP’s HR experts outline what employers must know about FMLA and mental health.   
 

Important Points About FMLA and Mental Health 
 

Avoiding claims of discrimination or retaliation.

Employers must train managers and ensure their own practices comply with FMLA when their employees request or take leave.  FMLA requires employers to: 

• Notify employees of their rights under FMLA 
• Allow employees to return to the same job, or one with similar pay and job duties. 
• Never fire an employee for taking FMLA leave. 

• Never discriminate or retaliate against employees for requesting or taking FMLA. 
• Never punish employees who take FMLA leave by disciplining them, passing them over for a promotion, or counting FMLA leave against an employee in a points-based attendance policy. 

Employers must also avoid the appearance of discrimination or retaliation.  Sometimes a manager may take an action motivated by a legitimate business imperative.  However, it may be construed as a punishment for taking or requesting FMLA leave.  For example: changing an employee’s schedule, changing an employee’s work location, or promoting another employee.  Employers will avoid this problem by documenting significant actions and the business reasons to justify them.  They should also ensure the employee feels comfortable discussing concerns with their managers or HR department.   

Setting requirements for FMLA.

Not all employers are subject to FMLA.  Organizations with less than 50 employees are not required to follow it.  (Note in some states, employers may need to comply with other leave programs, such as PFML.)  Organizations subject to FMLA may choose to stipulate these requirements in their policy: 

• Employees must provide a medical certification for a mental illness (like any other medical condition).  Only qualified professionals, such as doctors or therapists, may provide this documentation.  An employer may state that an online test or self-diagnosis is not enough.  
• Employees must have worked for the company for at least 12 months (consecutively or not) to qualify for FMLA leave.  (Some states don’t permit employers to make this requirement.  Check with an HR expert or employment attorney to ensure compliance.) 
• Employees must give 30-day advance notice of leave when possible.  Like other medical conditions, mental health conditions are not always predictable.  Thus, this notice may not always be possible. 
• Employees must follow a procedure to call in their FMLA leave.   

Employers should be attempting to strike a balance when developing or updating their FMLA policy.  They may want to ensure employees are not abusing FMLA leave.  However, they should also consider employee engagement and well-being.  Developing an FMLA policy that’s too stringent may create unnecessary barriers for employees who need time to care for a serious mental health condition.  Happy and healthy employees are the most loyal and productive.  They’re also the most likely to refer others to open positions and support recruiting efforts.  At a time when attracting and retaining talent is challenging, employee engagement is crucial to an organization’s success.  An employer should prioritize and support the well-being of its staff, whether for mental or physical health.  It isn’t just the right thing to do; it’s good business.  

FMLA Employer Checklist  

Employers should take a few steps to protect their organization and ensure compliance regarding FMLA and mental health.   
 

1. Write an FMLA policy for the employee handbook. It’s advisable to work with an employment lawyer for legal advice or an HR expert.  

2. Write a policy to cover other leave programs and how they may interact with FMLA.  These programs will vary by state and organization.  They include Paid Family and Medical Leave (PFML), state FMLA programs, sick time, etc.  If the organization has employees or offices based in multiple states, it may need to create multiple policies to meet varying compliance requirements.   

3. Disseminate all required FMLA policy notices to employees within the required timeframes.  

4. Document all requests. 

5. Separate medical records from other employee files.  Ensure files are confidential, as they often contain private medical information.  Employees’ right to privacy for their medical information is protected under federal FMLA law, the ADA, Genetic Information Nondiscrimination Act (GINA), as well as other state and federal laws.  

6. Train managers and HR department staff to respect the confidentiality of medical information.  When employees request FMLA for any reason (including a mental health condition), managers or HR personnel should rarely share this information with other employees.  The exception to this rule is that managers and supervisors may need to be apprised of some information on a need-to-know basis.  For example, if an employee must take intermittent leave to attend various appointments, their manager may need to know.  Maintaining confidentiality and discretion for employees’ FMLA information becomes particularly crucial with mental health-oriented requests, which may carry a stigma.