By Robin L.S. Burroughs and Jacob PolceVenable LLP (blog in Lexology July 20, 2022)
On May 25, 2022, the U.S. Department of Labor (DOL) announced that the Wage and Hour Division (WHD) published new Family and Medical Leave Act (FMLA) Guidance. The DOL explained that the new Fact Sheet and Frequently Asked Questions (FAQs) are focused on drawing attention to the use of FMLA leave to support employees’ mental health. The new guidance provides additional resources for employers to better understand their employees’ rights to take FMLA leave for serious mental health conditions.
FMLA Fast Facts
The new guidance does not change the fundamentals of FMLA eligibility: FMLA leave is only available to “eligible employees” working for “covered employers.” To be covered by the FMLA, an employer must have 50 or more employees for at least 20 workweeks in a year. Employees of a covered employer are eligible for FMLA leave once they have worked for at least 12 months and have recorded at least 1,250 work hours in the year preceding leave.
Mental Health and the FMLA
The WHD’s new Fact Sheet reminds employers that eligible employees may take FMLA leave because of a serious health condition, which may include mental health conditions. Under the FMLA, mental health conditions may qualify for FMLA leave if they require (1) impatient care or (2) continuing treatment by a healthcare provider.
In the mental health context, inpatient care can include more than a hospital stay. The WHD specifically cautions employers that the FMLA also applies to overnight stays in treatment centers for addiction or eating disorders. The requisite treatment by a healthcare provider can include treatment for common chronic conditions such as anxiety and depression, as well as one-time or short-term conditions that incapacitate an individual for more than three consecutive days.
Employers should also recall that leave under the FMLA may be either continuous or intermittent. Intermittent leave may be more common for some mental health conditions and might be requested when flare-ups occur or so the employee can attend ongoing counseling/therapy appointments.
Reasons for Mental Health FMLA Leave
In addition to broadly outlining when a mental health condition is covered by the FMLA, the WHD’s new guidance also reminds employers of specific reasons for leave that employers must be aware of to ensure FMLA compliance.
Caring for Oneself or a Covered Family Member. First, an eligible employee may take up to 12 weeks of leave for their own serious mental health condition that renders them unable to perform their essential job duties. In addition to caring for oneself, an eligible employee can take FMLA leave to care for a covered family member with a serious mental condition. For example, the new FAQs explain that employers must recognize an employee’s right to use FMLA leave to provide care for a spouse who is undergoing inpatient treatment for substance abuse or to attend a care conference with a spouse’s healthcare provider.
Caring for an Adult Child. Although FMLA is generally not available for an employee to care for a child over the age of 18, the new guidance notes an exception if the child cannot care for himself or herself because of a mental or physical disability. Importantly, the new guidance reiterates that employers should follow the Equal Employment Opportunity Commission’s (EEOC) regulations and guidance in determining whether an adult child’s mental health condition rises to the level of a “disability” that could qualify for FMLA leave.
Employer Rights and Obligations
Confidentiality. The new Fact Sheet reiterates the FMLA’s requirement to keep employee medical records confidential. Employees often have a heightened concern for confidentiality regarding mental health treatment. As with other medical records, employers are required to keep and maintain such files separate from more routine personnel files.
Certification. Despite the general need for confidentiality, the FMLA does grant employers the right to require an employee to submit a certification from a healthcare provider to support the employee’s need for FMLA leave – this extends to mental health providers. While the certification must be sufficient to support the employee’s leave, an employer cannot require the employee to disclose a diagnosis. While medical professionals often do provide a diagnosis on an FMLA certification, mental health providers may be less likely to volunteer this information, or employees may request that it not be provided to their employers. Employers are reminded that a formal diagnosis is not required to substantiate FMLA leave.
Retaliation. The new guidance stresses that, as always, employers are prohibited from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right. For example, the guidance warns that employers are barred from refusing to authorize leave or disclosing, or threatening to disclose, information about an employee’s mental health condition in an attempt to discourage them from taking FMLA leave.
As the WHD continues to bring attention to mental health and crack down on noncompliant employers, it is critical that your organization is aware of the ever-evolving web of FMLA guidance.