New Guidance Issued by Department of Labor Regarding Mental Health and the FMLA

On Could 25, 2022, throughout Mental Health Consciousness Month, the Wage and Hour Division (WHD) of the Department of Labor, the company liable for imposing the Household and Medical Go away Act (FMLA), issued Fact Sheet # 28O and associated Frequently Asked Questions, which debate psychological well being and leaves of absence below the FMLA.  The publications don’t create new legislation or obligations on employers, however present detailed dialogue, together with hypothetical fact-patterns, explaining when an worker could also be entitled to a job-protected go away of absence below the FMLA for their very own psychological well being situation, or when they’re offering take care of a member of the family with a psychological well being situation.

On this steerage, the WHD explains that an eligible worker could take job-protected go away below the FMLA for their very own “serious health condition or to care for a spouse, child or parent because of a serious health condition” and {that a} critical well being situation can embrace a “mental health condition.”   Mental and bodily well being circumstances are critical well being circumstances below the FMLA in the event that they require “1) inpatient care or 2) continuing treatment by a health care provider.”  The DOL explains in the Reality Sheet that critical psychological well being circumstances requiring persevering with therapy by a healthcare supplier embrace:

  • “Situations that incapacitate a person for greater than three consecutive days and require ongoing medical therapy, both a number of appointments with a well being care supplier, together with a psychiatrist, medical psychologist, or medical social employee, or a single appointment and follow-up care (e.g., prescription treatment, outpatient rehabilitation counseling, or behavioral remedy); and

  • Continual circumstances (e.g., anxiousness, despair, or dissociative issues) that trigger occasional intervals when a person is incapacitated and require therapy by a well being care supplier at the very least twice a yr.”

The Reality Sheet offers particular examples of when psychological well being circumstances can be lined below the FMLA for an worker’s personal psychological well being situation, when caring for a member of the family below the age of 18 with a psychological well being situation, and when caring for a member of the family over the age of 18 with a psychological well being situation.

Reality Sheet #28O explains that the FMLA additionally offers eligible workers with as much as 26 weeks of navy caregiver go away to take care of a lined servicemember and sure veterans with a critical harm or sickness.  A critical sickness or harm for present servicemembers is one which was incurred in the line of obligation “that may make the servicemember medically unfit to perform the duties of their office, grade, rank or rating” or outcomes from the “aggravation in the line of duty on active duty of a condition that existed before the member began service.”  With respect to veterans, a critical harm or sickness is one which makes the veteran “medically unfit to perform his or her military duties, or an injury or illness that qualifies the veteran for certain benefits from the Department of Veteran Affairs or substantially reduces the veteran’s ability to work.”  Critical sickness or accidents for veterans additionally embrace these “incurred or aggravated during military service but that did not manifest until after the veteran left duty” similar to post-traumatic stress dysfunction (PTSD) or despair.

Lastly, Reality Sheet #28O and the associated FAQs reiterate the FMLA necessities that employers preserve worker medical data, together with any data relating to an worker’s psychological well being situation, confidential and separate from “more routine personnel files” and reinforce the FMLA’s anti-retaliation protections.

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