July 19, 2022

On May 25, the Department of Labor (DOL) released a new Fact Sheet #28O and Frequently Asked Questions (FAQs) regarding job protected leave under the Family and Medical Leave Act (FMLA) for mental health-related reasons.

Under the FMLA, eligible employees are entitled to take up to 12 weeks of unpaid leave per year for a “serious health condition” involving the employee, the employee’s spouse, child or parent that makes the employee unable to perform the functions of the employee’s position. The DOL’s latest guidance communicates that a serious health condition can include a mental health condition under the FMLA if they meet the definition of (a) requiring inpatient care or (b) requiring continuing treatment by a health care provider.

The FAQs address multiple scenarios where an eligible employee may use FMLA related to a mental health condition, including:

• Leave for an employee’s own mental health condition;
• Leave to care for a family member with a mental health condition;
• Leave to care for an adult child with a mental health condition;
• Military caregiver leave for a mental health condition.

The FAQs also indicates that eligible employees may use FMLA once per month for mental health therapy appointments.

About FMLA Leave

FMLA leave is available to eligible employees of covered employers:

• Eligible 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 under the FMLA are private employers if they employ 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 local, state, or Federal government agencies, and public and private elementary and secondary schools are FMLA covered employers regardless of the number of employees.

The FMLA requires employers to continue an employee’s group health benefits under the same conditions as if the employee had not taken leave and restore the employee to the same or virtually identical position at the end of the leave period. FMLA leave may be unpaid or may be used at the same time as employer-provided leave. An employer may require an employee to submit a certification from a health care provider to support the employee’s need for FMLA leave. The information on the certification required to be sufficient to support the need for a leave, but does a diagnosis is not required.

Effective Date

These Q&As interpret existing law and regulations and therefore are effective immediately.

Next Steps

Covered employers should review the fact sheet and FAQs and confirm their FMLA policies are compliant with the latest guidance. The FMLA requires employers to keep employee medical record confidential and separate from routine personnel files. Employers must also ensure employee records and confidentiality protocols are compliant with other applicable laws such as the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA).

More Topics

Articles & Guides Compliance Mental Health Parity Leave Policy