Viewpoint: How the FMLA Supports Leave for Mental Health Conditions

A growing number of our employees are dealing with serious mental health issues that render them unable to come to work. As employers, we need to know how to manage and support our employees during these difficult times.

On May 25, the U.S. Department of Labor issued guidance reminding us that the Family and Medical Leave Act (FMLA) covers situations where an employee's mental health condition, or that of a family member in their care, inhibits the employee from working.

The DOL provided several examples of FMLA-triggering situations in its new Fact Sheet #28O and FAQ:

• Flare-ups of a mental health condition.
  

• Appointments with a physician to manage an anxiety condition.
  

• Attending a family counseling session for a spouse who is in an inpatient treatment program for substance use.
  

• Caring for an adult child who was recently released from several days of inpatient treatment for a mental health condition.
  

• Caring for a service member.

The guidance addressed how the FMLA applies is various situations:

Karen is occasionally unable to work due to severe anxiety. She sees a doctor monthly to manage her symptoms. Karen uses FMLA leave to take time off when she is unable to work unexpectedly due to her condition and when she has a regularly scheduled appointment to see her doctor during her work shift.

Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and was recently released from several days of inpatient treatment for a mental health condition. She is unable to work or go to school and needs help with cooking, cleaning, shopping and other daily activities as a result of the condition.

Gordon's spouse began to have symptoms of post-traumatic stress disorder (PTSD) three years after she was honorably discharged from military service overseas. Gordon uses FMLA leave for two weeks to transport his spouse to and from outpatient treatment at a Veterans Health Administration hospital and to assist her with day-to-day needs while she is incapacitated.

Insights for Employers

When our employees are suffering through difficult personal times, this is when they need to count on us the most. There are a few important principles to keep in mind when managing an employee with a mental health condition:

1. The great majority of our employees use FMLA leave appropriately and for real medical needs. This should be our frame of reference when we are faced with an employee's request for leave due to a mental health condition. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return. To that end, let's not assume without any basis in fact that an employee is trying to misuse their leave of absence.

2. FMLA notice doesn't always come in words. There are an increasing number of cases in which courts have found that changes in employees' behavior might suggest that the employee is suffering from a serious health condition, and that the employer is obligated to treat the behavior as a request for FMLA leave. To be clear, an employee is not required to use the letters F-M-L-A to request leave, and it underscores that the courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA. As a result, it is critical that employers identify all situations in which the employee may be experiencing a medical condition and proactively engage the employee in a discussion about what we can do to help.

3. Let empathy be your guide. Where there are clear abnormalities in the employee's behavior, it is critical that the employer explore whether it can provide assistance to the employee before hitting the termination button. When you communicate with an employee, use words that show you're on the same side as the employee and that you are there to help. If leave is the only option, it's far better to help them take the time they need to get better and then return to work. Let your communications reflect this sincerity and empathy.

As a David Fram disciple, I advise my clients that they are best served by first asking, "How can I help you?" These five simple, yet powerful words go a long way in ensuring the employee has the assistance they need. If they refuse this assistance after notice and fair warning, then and only then do we consider more drastic options.

4. Be patient with medical certification and overall responsiveness. The FMLA teaches us that an employee is obligated to return medical certification within 15 days of receiving it from you. But what if their mental health gets in the way of a timely certification? If you have reason to believe the delay is due to their condition, again let empathy be your guide. Not saying that anything goes, but a few extra days to return the certification might be one of the simple things you can do to show you care.

5. Train managers to help you achieve the kind of workplace you're trying to cultivate. Front-line managers often fail to recognize when an employee may need a leave of absence protected by the FMLA, especially where mental health issues are present. Even worse, some make derogatory comments about an employee's use of FMLA leave. Indeed, many front-line managers simply are not properly trained to recognize when an employee has provided sufficient facts to trigger the FMLA and to take appropriate steps to respond to the employee's request.

In my experience, this is perhaps the single biggest problem for employers, as it creates easy liability.

Once in a while, we need that simple reminder: Be sincere. Be empathetic. FMLA and Americans with Disabilities Act (ADA) compliance will follow.

Jeff Nowak is a shareholder at Littler, an employment and labor law practice representing management, and author of the FMLA Insights blog, where an extended version of this article first appeared. © 2022 Jeff Nowak. All rights reserved. Republished with permission.