On May 25, 2022, the U.S. Department of Labor announced that the Wage and Hour Division (WHD) published new Family and Medical Leave Act (FMLA) Guidance. The newly issued Fact Sheet #280 explains when eligible employees may take FMLA leave to address mental health conditions, and new Frequently Asked Questions (FAQs) offer explanations on how to address various scenarios that employers and employees could face in which use of job-protected leave available under the FMLA would be appropriate.

Reviewing FMLA Basics

Although the FMLA covers public and private employers nationwide, only those private employers who have 50 or more employees for at least 20 workweeks in a year are required to provide their eligible employees with FMLA leave. FMLA leave is unpaid but job-protected, meaning that employees returning from FMLA leave must be restored to their original job or equivalent position. Employees are eligible once they have worked for a covered employer for at least 12 months and logged at least 1,250 hours of work during the period immediately preceding leave, which may be taken for an employee’s own serious health condition or to care for a spouse, child, or parent because of their serious health condition.

Mental Health Conditions and the FMLA

As reiterated by the new WHD guidance, a serious health condition can include a mental health condition. Under the FMLA, health conditions, whether physical or mental, are considered serious when they require inpatient care or continuing treatment by a healthcare provider. Inpatient care for a mental health condition might be something like time spent in a residential care facility for treatment of an eating disorder or substance abuse. Examples of “continuing treatment” include ongoing counseling by a clinician, such as a licensed clinical social worker, psychologist, or psychiatrist.

Also qualifying as serious mental health conditions under the FMLA are those that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, as well as chronic conditions, such as anxiety, depression, or dissociative disorders that can cause occasional periods of incapacitation, requiring treatment by a health care provider at least twice a year. An eligible employee might be entitled to FMLA leave – including intermittent leave – to attend to such conditions, either for themselves or to care for an eligible family member with such a condition.

Special Considerations for Caregiving Situations

The new WHD guidance notes that, although FMLA leave to permit an employee to care for a child with a serious health condition is generally available only when the child is under the age of 18, an employee should be granted FMLA leave to care for an adult child, if the child’s serious health condition also satisfies the definition of a disability. Significantly, it reminds employers that regulations developed by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disability Act (ADA) should inform them as to whether an employee’s adult child’s serious health condition also qualifies as a disability warranting FMLA leave. This policy was previously explained in WHD Fact Sheet #28K, albeit not specifically referencing mental health conditions.

The new WHD guidance also addresses FMLA leave for military caregivers, providing examples such as post-traumatic stress disorder and depression in a servicemember or veteran as conditions that could justify an employee’s use of military caregiver leave under the FMLA.

Employer Rights and Responsibilities

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 provided on the certification must be sufficient to support the need for leave, but a diagnosis is not required. Any medical records collected must be kept confidential and maintained in a file separate from the employee’s general personnel file. However, managers and supervisors may be advised on a need-to-know basis if an employee must take leave or requires accommodations.

Employers are prohibited from interfering with or retaliating against any employee who seeks to exercise rights under the FMLA. Employees who claim violations of the FMLA can seek redress through the WHD or in court.

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The new WHD guidance is part of a larger governmental focus on mental health issues, including a nationwide Mental Health Awareness Month that concluded on May 31, 2022. On that date, the Biden Administration issued a release regarding its plans to advance a strategy to address mental health. Those plans include further enforcement of workplace rights through the EEOC, which may also revise its guidance materials, such as this technical assistance document, issued in December 2016.