Nearly one in 20 adults in the US experience a serious mental illness every year, according to recent data from the National Alliance on Mental Illness. As a result, employers should take time to understand their legal obligations related to leave requests, including under the Family Medical Leave Act, from employees related to their mental health.
Parameters
The FMLA only covers mental health conditions that rise to the level of a serious health condition. This includes inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health-care provider that prevents the employee from performing the functions of their position.
Any mental health condition has the potential to qualify as a serious mental health condition, including depression and anxiety. Workplace stress could even rise to this level under certain circumstances.
However, a diagnosis alone is not enough to trigger an employer’s obligations. Many mental health conditions are on a spectrum, with variations ranging in severity. Whether an employee’s condition qualifies for FMLA leave needs to be determined on a case-by-case basis.
Employers should consider whether the mental illness:
- Continues over an extended period of time
- Requires periodic doctor’s visits because of, or to prevent, episodes
- Episodes prevent the employee from performing regular daily activities
If so, the condition is sufficiently serious.
On the other hand, where there is no continuing treatment, no period of incapacity, or no chronic impairment, then the mental health condition is not sufficiently serious. Likewise, acute medication side effects do not qualify as a serious medical condition, though chronic ones might.
Employee Requirements
It is very easy for employees who work for covered employers to give notice of intent to take FMLA leave for serious mental health conditions. Employees are not required to understand when they may take FMLA leave, to state explicitly that they intend to take FMLA leave, or even to know that the FMLA exists.
An employee should apprise their employer of the specifics of their mental health condition in a way that makes it reasonably plain that the condition is serious, and tell their employer this reason for their absence.
However, employees must do more than simply state that they have a mental illness for an employer to be considered “on notice” of a serious mental health condition. Generally, an employee must provide details about the mental condition, including its severity and any incapacity that may occur.
Where an employee has a drastic and noticeable change in behavior or mood, an employer may be considered “on notice” without this disclosure.
On the other hand, an employer already “on notice” of a serious mental health condition, such as because an employee has previously taken leave to obtain treatment, then an employee may simply inform the employer that they need leave for that same mental illness, even if the employee does not spell out the severity for each leave request.
An employee just saying that “I’m sick” is insufficient.
Employer Requirements
If an employee requests FMLA leave for a serious mental health condition, the same obligations are triggered as with any other serious health condition, including employer notice and designation obligations.
For FMLA leave, employers may require medical certification of the serious mental health condition. However, employers must remember their confidentiality obligations under FMLA and the Americans with Disabilities Act when seeking, receiving, and maintaining medical information about employees.
In addition, a serious mental health condition may require an employer to permit long leave periods, or it may require intermittent or reduced leave schedule. However, courts “have been reluctant to read the FMLA as allowing unscheduled and unpredictable, but cumulatively substantial, absences,” according to Judge Frank Easterbrook.
Employers must also be aware that individual states and municipalities may have different requirements for mental health leave that are more expansive in terms of employer obligations or what conditions are covered.
Further, employers should consult with competent legal counsel to consider the interplay of leave laws with the ADA, workers’ compensation laws, Occupational Safety and Health Administration laws, and other related laws.
Just because an employee has exhausted their FMLA leave does not necessarily mean that they are entitled to no other leave under another law.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Sarah M. Saint is an employment attorney at Brooks Pierce. She advises on FMLA for mental health conditions and litigates on behalf of public and private educational institutions and school boards on an array of education law issues.
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