Required Leave Under FMLA
FMLA requires covered employers to provide eligible employees up to 12 weeks of unpaid leave during a 12-month period for the following:
- Care for the serious health conditions of a spouse, child under age 18, or parent;
- Childbirth, adoption, or placement of a child;
- Military caregiver or exigency leave; or
- Care for a child who is 18 years or older who needs care and is incapable of self-care because of a mental or physical disability.
During any period of unpaid leave, FMLA entitles employees to continued group health benefits under the same conditions as if they had not taken leave. Their employers also must restore them to the same or an identical position at the end of their leave period.
Defining Serious Health Conditions and Disabilities Under FMLA
Under the FMLA, a “serious health condition” is an “illness, injury, impairment, or physical or mental condition that involves either inpatient care in a hospital, hospice, or residential medical care facility, or continuing treatment by a health care provider.” A “disability” is “a mental or physical impairment that substantially limits one or more of the major life activities of an individual.”
Qualifying Mental Health Conditions
The DOL’s Fact Sheet clarifies that some mental health conditions may meet the definitions of both a serious health condition and a disability, even if the statutory tests differ. The FMLA refers to the Equal Employment Opportunity Commission’s (EEOC) regulations under the Americans with Disabilities Act (ADA) to determine if a condition is a disability. The EEOC states that certain mental health conditions, including major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia, should qualify as disabilities because they “substantially limit” one or more of the “major life activities” of individuals. Mental health conditions can qualify as serious health conditions if they require inpatient care OR continuing treatment by a health care provider.
Serious mental health conditions that require continuing treatment by a health care provider include those that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, such as multiple appointments or a single appointment and follow-up care.
However, DOL’s FAQs also state that serious mental health conditions requiring continuing treatment include chronic conditions, whether physical or mental. These conditions may cause occasional periods when individuals cannot work because they require treatment by a health care provider at least twice per year and recur over an extended period. In addition, the FAQs refer to examples in which FMLA caregiver leave based on a family member’s mental health condition would be appropriate, including the following:
- Caring for an adult child who has been released from inpatient care for a mental health condition but who is unable to go to work or school and needs help with basic household chores;
- Attending family counseling sessions for a family member who is in an inpatient treatment program for substance abuse, participating in a medical treatment program, or attending a care conference with health care providers; and
- Caring for a relative who is a covered veteran undergoing treatment, recuperation, or therapy for a serious injury or illness, including a mental health condition, that was incurred in the line of active duty or aggravated a preexisting condition while in the line of active duty, such as post-traumatic stress disorder, a traumatic brain injury, or depression.