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.

Source: Epstein Becker Green – Susan Gross Sholinsky and Tiffany Sarchet

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