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FMLA, ADA, and employees with depression: Examining the nuts and bolts

Employees bring their expertise, education, and skills to work every day, and employers count on those qualities. But employees may also bring other aspects of their lives to work—characteristics that can complicate the employer’s responsibilities. 

A study from Integrated Benefits Institute (IBI), a nonprofit organization concerned with health and productivity research, released a study in November showing that depression affects 10 percent to 20 percent of employees. The IBI study found the cost to employers in lost work time and medical treatments amounts to approximately $62,000 annually per 100 employees.

Depression is costly because it causes absenteeism, but an employee doesn’t have to be absent to be nonproductive. “Presenteeism,” in which employees show up for work but aren’t able to perform well, also takes a toll on an employer’s bottom line, according to the IBI study. The study found that employees with depression miss eight more days a year than those without depression, and they have the equivalent of 11 more days of presenteeism annually.

When employees suffer from depression, employers need to avoid mistakes in administering leave under the Family and Medical Leave Act (FMLA), and they must be on guard against discrimination that would violate the Americans with Disabilities Act (ADA).

Patricia Eyres of Eyres Law Group, LLP, in Irvine, California, conducted a webinar in August titled “Depression in the Workplace: Strategies for Seamlessly Handling FMLA Requests and ADA Accommodations.” In the program, she pointed out major issues for employers to consider.

FMLA concerns
Often employees with depression seek time off, either as a block of time or intermittently. Such a request may trigger the FMLA. Here are the questions Eyres suggests employers ask themselves when an employee requests time off because of depression or anxiety.

  • Does the FMLA apply? The FMLA covers employers with at least 50 employees. Employees working for covered employers must have worked at least 12 months (not necessarily consecutively) for the employer, and they must have worked at least 1,250 hours in the preceding 12 months to be eligible for the job-protected leave the FMLA provides. If the employer or employee isn’t covered under the FMLA, the employer may still have an ADA issue, since time off might be deemed a reasonable accommodation under that law.
  • Does the employee have a “serious health condition”? The FMLA outlines how that determination is made.
  • Has a medical provider provided the proper certification for a serious health condition?
  • Do the employer’s policies/procedures apply?
  • Does the employee have other available avenues?

In her presentation, Eyres warned employers to be careful about fitness for duty certifications when dealing with employees on FMLA leave. An employer may have a policy requiring a medical provider to certify that an employee is well enough to return to work, but the policy can’t apply just to employees who have taken FMLA leave.

If the employer has a policy that all similarly situated employees who take any kind of medical leave must show fitness for duty, it’s OK to require that for employees who have taken a block of time of FMLA leave. Fitness for duty certification can’t be required for employees who take intermittent FMLA leave.

Eyres said an employer requiring a fitness-for-duty certification must inform the employee of the requirement in the initial designation letter. The employer needs to provide the health care provider with a sufficient description of the essential job functions to make the fitness-for-duty certification meaningful. The certification need only be a simple statement of an employee’s ability to return to work with or without restrictions.

ADA concerns
Depression often fits the ADA’s definition of disability, meaning employers and employees must explore together if certain changes—reasonable accommodations—in the workplace are necessary for the employee to do his or her job.

Discussions of the ADA include terms such as “essential functions,” “interactive process,” and “reasonable accommodations.” The law prohibits employers from discriminating against a qualified employee with a disability who can perform the essential functions of the job with or without reasonable accommodations. To determine whether a reasonable accommodation is possible, the employer and employee must engage in the interactive process.

Eyres pointed out that sometimes the need for the interactive process is triggered by a note from a medical provider that the employee needs to get away from certain stressors in the workplace. Other times the trigger isn’t a doctor note, but something that happens in the workplace such as a performance review or disciplinary action and the employee says the problem is a result of his or her condition.

Employees don’t “have to use magic words—‘I have a disability and I need a reasonable accommodation,’” Eyres said. Instead, they may just say there’s an issue and they need help.

Here are some questions Eyres says employers should consider in ADA cases:

  • Does the ADA apply?
  • Does the condition meet the definition of disability?
  • Has the doctor provided functional limitations and work restrictions?
  • Is an interactive process required? Eyres says that answer is going to be “yes.”
  • Is there an appropriate accommodation?

Sample reasonable accommodations
Eyres presented a list of accommodations that may be helpful to employees with depression.

  • Concerning attendance, flexible scheduling or a modified schedule may be appropriate.
  • Related to problems the employee has with concentration and memory, employers might find ways to reduce distractions, allow the employee to work from home, divide large assignments into smaller tasks, restructure a job, or provide memory aids such as schedulers and organizers.
  • Concerning emotions, the employer might allow flexible breaks and suggest stress management techniques.
  • Related to fatigue, the employer might provide a goal-oriented workload or reduce the employee’s tasks.
  • Related to memory, the employer might provide a job coach or mentor, allow extra training time, or provide written checklists.
  • To help an employee with organization, the employer might use daily, weekly, and monthly task lists or divide large assignments into smaller tasks.

Want to learn more? Patricia Eyres will be presenting the webinar “Depression in the Workplace: Strategies for Seamlessly Handling FMLA Requests and ADA Accommodations” live on February 27. Sign up to listen to the full presentation and have the opportunity submit your questions by going to or calling 800-274-6774.