FMLA and Mental Health: What Points Employers Must Know, Part 1 

Currently, more Americans than ever are struggling with mental health issues. The Centers for Disease Control and Prevention note (CDC) that 1 in 5 US adults every year will have to deal with a mental illness and 1 in 25 US adults lives with serious mental health challenges (like depression, anxiety, bipolar disorder, schizophrenia, etc.).  During the pandemic, these numbers have skyrocketed.  As a result, covered employers must prepare for the fact that their employees may qualify for FMLA.  The Family and Medical Leave Act (FMLA) allows any eligible employees to take a protected leave if they’re unable to work due to their own serious medical condition or need to care for a family member.  A serious medical condition includes mental illness, and employers must prepare to respond appropriately to these requests.  Other federal policies, such as the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act (ADA), also come into play in some of these scenarios.  They protect employees’ rights to privacy, dictate how medical records must be handled, and more.  (The ADA may fill in the gaps where FMLA doesn’t apply.)  In part one of this two-part series, MP’s HR experts share what employers must know about FMLA and mental health. 

FMLA and Mental Health: Key Points 

Employee’s rights. 

Employees who are eligible for FMLA may take job-protected leave for a mental health condition.  Though they may be required to continue paying towards their premium, employees have a right to keep employer-provided health coverage during this leave.  Conditions that qualify may: 

• Cause occasional periods when the employee is unable to work 
• Be chronic and recur over an extended period of time 
• Require treatment from a health care provider at least twice yearly 
• Require an overnight stay in a hospital or residential medical care facility 

This DOL fact sheet offers examples of mental health circumstances that could trigger FMLA protections.  
Employees may take FMLA leave either all at once or intermittently (i.e., for a few hours a week to attend appointments) because they are: 

• Unable to perform one or more of their essential job duties. 
• Caring (assisting with basic medical, hygienic, nutritional, or safety needs) for a family member with a serious mental health condition (see above for qualifications for serious health conditions).  They are not required to be the only person caring for them. 
• Caring for a child who is 18 years or older and is incapable of self-care due to an ADA-qualified disability or serious health condition (see above for qualification).  (An ADA-qualified disability substantially limits one or more major life activities, such as breathing or working.)  
• Caring for a relative who is a covered veteran and is undergoing treatment or recuperating from a serious injury or illness.  The injury or illness may have resulted during duty or be a pre-existing condition aggravated during duty.   
  

How much leave employees may take. 

FMLA requires employers to permit up to 12 weeks, or 1,250 hours, of unpaid leave.  Employees may take this leave every FMLA-calendar year, which is 12 months.  Employers should also seek legal advice from an employment lawyer or work with an HR expert (like the ones at MP) to understand any other leave programs available to employees—and how these programs will interact with federal FMLA.  Many states have their own Paid Family Medical Leave (PFML) programs, which may concurrently with FMLA.  Additionally, many states have employer requirements for providing sick leave and paid time off (PTO).  In addition to FMLA compliance (which is federally regulated), an employer should comply with the state employment laws wherever they have employees.  If an organization has a headquarters in one state, and offices or remote workers located in other states, it must adhere to requirements for each of these states.  Employers should not just focus on compliance for the state and city where their headquarters is located.  Various forms of leave are likely to interact in complex ways, making compliance with FMLA (and other leaves) complex.