Question

An employee just requested time off because she is suffering from anxiety.  I am not sure whether that qualifies as a serious health condition under the Family and Medical Leave Act (FMLA).  Where can I find more information about leaves for mental-health conditions?

Answer

While the Massachusetts Paid Family and Medical Leave Act (PFML) places responsibility for designating serious health conditions with the Department of Family and Medical Leave (DFML) or your insurance carrier, you as the employer will have to make that determination for the Federal Family and Medical Leave Act (FMLA) leave certification.  Such requests should be approached in much the same way as a medical leave for a physical condition.

Both the PFML and FMLA include mental-health conditions in their identical definitions of ‘serious health condition.’  While the PFML has become the predominant leave statute since it went into effect last year, employers of 50 or more will continue to deal with FMLA as the two leaves may run concurrently as provided in the PFML statute at M.G.L. ch. 175M, § 2(h)(2)(i).

The US Department of Labor (DOL) recently issued Fact Sheet # 280: Mental-Health Conditions and the FMLA to help employers make this determination.  Fact Sheet 280 provides general examples of mental-health conditions that may constitute serious health conditions under the FMLA.  Many of the examples are based on cases that have been decided in federal courts.

While the Fact Sheet is not binding, it will likely influence future court rulings. Employers of fewer than 50 people (to whom the FMLA does not apply) should pay attention, as the DFML has indicated that it will look to the FMLA for guidance when the PFML does not address a particular issue.

For a mental-health condition to qualify as a serious health condition under the FMLA, it must involve:

1. Inpatient care, such as an overnight stay in a hospital or other medical facility, such as, for example, a treatment center for addiction or eating disorders; or
2. Continuing treatment by a health-care provider including:

• Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, either multiple appointments with a health-care provider 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.

The employer may require medical certification to support the designation, but the certification does not have to include a diagnosis.

One example in the Fact Sheet is based on a federal case in which an employer terminated a longtime employee whose history of anxiety and depression was well known to the employer.  The employer, a nursing home, failed to designate the employee’s absence under the FMLA, despite her eligibility.

They defended their action because her email to the company requesting time off did not include any medical information.  It simply said she was overwhelmed, but it also included an inquiry about FMLA coverage.

The email, combined with the company’s knowledge of her past anxiety and depression should have prompted the HR manager to discuss FMLA leave.  The court awarded the employee more than $800,000 in a combination of front pay, back pay, and liquidated damages. The case demonstrates that a request need not include details about medical treatment for a mental-health condition to trigger the employer’s responsibility under the FMLA.

Employers should discuss FMLA leave when an eligible employee indicates that she or he needs time off for a mental health-condition.  The employer’s focus thereafter should be on the medical certification and any limits it places on the employee’s ability to work, just as it would for a physical condition.

Please contact the Employer Hotline at (800) 470-6277 if you have questions about FMLA (or PFML) leave for a mental-health condition.