New DOL Guidance Sheds Light on FMLA and Mental Health Leave

The U.S. Department of Labor (DOL) has issued new guidance, explaining when an employee may be entitled to Family & Medical Leave Act (FMLA) leave based on his or her own serious mental health condition or to care for a covered family member with a serious mental health condition. 

Announced during Mental Health Awareness Month, the new guidance and related Frequently Asked Questions (FAQs) do not make any changes to the FMLA itself. Instead, the DOL clarifies that an eligible employee may take job-protected leave for a serious mental health condition when the condition requires “inpatient care” or “continuing treatment by a health care provider.” 

For the former category, the guidance provides, “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.”

Qualifying mental health conditions falling under the latter category include:

• • Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, either multiple appointments with a health care provider, including a psychiatrist, clinical psychologist or clinical social worker, or a single appointment and follow-up care (e.g., prescription medication, outpatient rehabilitation counseling or behavioral therapy); and
  • Chronic conditions (e.g., anxiety, depression or dissociative disorders) that cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year

In addition to reiterating that an employee is entitled to job-protected leave for his or her own serious health condition, the guidance further clarifies when an employee may take FMLA leave to care for a spouse, child or parent because of their serious mental health condition.

Consistent with the DOL’s prior guidance on providing care for adult children, the new guidance explains that if an adult child’s serious mental health condition also satisfies the definition of a disability under the Americans with Disability Act, an employee may take FMLA leave to care for a child who is incapable of self-care because of a qualifying mental health condition at the time that FMLA leave is to commence.

The guidance also addressed military caregiver leave rights under the FMLA. With respect to current military personnel, the guidance explains that a serious illness or injury is one that was incurred in the line of duty “that may make the servicemember medically unfit to perform the duties of their office, grade, rank or rating” or results from the “aggravation in the line of duty on active duty of a condition that existed before the member began service.” 

For veterans, a serious injury or illness is one that makes the veteran “medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veterans Affairs or substantially reduces the veteran’s ability to work.” Serious illness or injuries for veterans also include those “incurred or aggravated during military service but that did not manifest until after the veteran left duty,” such as post-traumatic stress disorder and depression. 

The guidance reminds employers that, when caring for a military member, qualified employees are entitled to up to 26 weeks of job-protected leave, as opposed the 12 weeks available for caring for non-military members.

Please contact Stephanie Poucher or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.