Benefits and Compensation, HR Management & Compliance

New DOL Guidance Address Mental Health Leave Under FMLA

The past few years have heightened feelings of stress and isolation for many people, and with the seemingly continuous news cycle of incidents of mass violence, mental health has taken a much-needed place in the forefront of the national conversation. Recently, the U.S. Department of Labor (DOL) reminded employers that mental health affects both employees and the workplace. New DOL guidance reiterates that a mental health condition may qualify as a serious health condition under the Family and Medical Leave Act (FMLA), and employers should be prepared to properly handle leave requests involving the mental health of an employee or an employee’s family member.

FMLA Leave Basics

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FMLA leave is available to eligible employees. They are eligible if they work for a covered employer for at least 12 months, have at least 1,250 hours of service for them during the 12 months before the leave, and work at a location where they have at least 50 employees within 75 miles.

Private employers are covered under the FMLA if they employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year. This also includes joint employers or successors in interest to another covered employer. Public agencies (including a local, state, or federal government agency) and public and private elementary/secondary schools are FMLA covered employers regardless of the number of employees they have.

FMLA requires employers to: (1) provide 12 work weeks of FMLA leave each year; (2) continue an employee’s group health benefits under the same conditions as if they hadn’t taken leave; and (3), restore them to the same or a virtually identical position at the end of the leave period. It may be unpaid or may be used at the same time as employer provided paid leave.

Rise in Mental Health Conditions in the Workforce

The United States Equal Employment Opportunity Commission (EEOC) recently released its fiscal year 2021 report on charges of discrimination. The EEOC’s report noted 37.2% of charges included disability-related claims under the Americans with Disabilities Act (ADA).

Of those ADA claims, nearly 30% alleged discrimination based on mental health conditions. The large number of claims mirrors what employers have seen in the workplace. In response, many employers have implemented expanded employee assistance programs or expanded paid time off to aid those experiencing mental health concerns.

A recent World Health Organization (WHO) study aimed at identifying the impact of mental health issues on the global economy estimated the associated cost is approximately $1 trillion per year in lost productivity. The WHO study also highlighted that employers who take an active role in supporting employees with mental health issues reduce absenteeism, increase productivity, and increase profit.

DOL’s Response

The DOL has recognized the outsized impact on productivity that the increase in mental health issues among employees has had on workplaces. In response, the DOL has provided two new guidance documents. The first new document is Fact Sheet #280: Mental Health Conditions, and the second is Frequently Asked Questions that focus on the FMLA’s mental health provisions.

The guidance reiterates that an eligible employee can take a “job-protected leave under the FMLA” for “serious health condition[s] or to care for a spouse, child or parent because of a serious health condition.” The guidance also explains that serious health conditions include both physical and mental health conditions that require (1) inpatient care; or (2), ongoing treatment by a healthcare provider. A serious mental health condition that requires continuing treatment by a health care provider includes:

  • Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment (e.g., multiple appointments with a health care provider, including a psychiatrist, clinical psychologist, or clinical social worker) or a single appointment and follow-up care (e.g., prescription medication, outpatient rehabilitation counseling, or behavioral therapy); and
  • Chronic conditions (e.g., anxiety, depression, or dissociative disorders) that cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year.

An employer may require an employee to submit a certification from a health care provider to support their need for FMLA leave. The information provided on the certification must be sufficient to support the need for leave, but a diagnosis isn’t required.


It can be difficult to navigate FMLA leave requests, even in some of the most straight-forward scenarios. The nature of mental health diagnoses, symptoms, and treatment can make the FMLA process confusing for employers. It’s imperative that you familiarize yourself with the Fact Sheet and FAQs to understand your FMLA compliance obligations, and you should be prepared to identify and handle FMLA-covered leave requests.

However, even with the DOL guidance to lean on, you should seek guidance where there is any confusion as to whether an individual is qualified and/or covered under the FMLA, especially before denying a request.

Irrespective of technical compliance issues, the recently published data confirms that it’s in your best interest to support your employees’ mental health, as healthy employees are more focused and productive. You should consider programs in addition to the FMLA framework to support employees’ mental health to ensure a successful workforce.

When in doubt in assessing these difficult issues, it is always best to consult with an experienced employment law attorney.

Sara Anne Quinn and Keith Mier are employment attorneys at Butler Snow, LLP, and may be reached at and

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