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  • Paul F. Keneally

Federal DOL Wage & Hour Division Releases Fact Sheet on Mental Health and the FMLA

We have seen a great increase in questions from clients related to employees and their family members’ mental health issues, both pre-COVID and especially since then. These issues interplay with New York State sick/safe leave, the Americans with Disabilities Act (“ADA”), paid family leave, and the employers’ PTO/vacation and/or tardiness policies. Employers who have more than 50 employees within a 75-mile area for at least 20 or more work weeks in the previous or current year also must manage the Family and Medical Leave Act (“FMLA”) obligations towards an employee who needs time off because of mental health issues. The FMLA provides for up to 12 weeks per year of unpaid leave (though employers may require concurrent use of available PTO) for serious health conditions that require inpatient care or continuing treatment, including mental health ones. The employee on FMLA leave is entitled to the same health benefits while out as while working and must be returned to the same or virtually identical position upon return from FMLA leave.


Given the increase of employee mental health issues implicating the FMLA, the federal Department of Labor (“DOL”) Wage & Hour Division released its “Mental Health Conditions and the FMLA Fact Sheet (#280) in May 2022. The Fact Sheet described the mental health inpatient care prong as requiring an overnight stay at a hospital or mental health facility and the continuing treatment prong as requiring 1) incapacitation for three consecutive days for ongoing medical treatment of multiple appointments or one appointment with follow-up care, or 2) chronic conditions requiring treatment from a health care provider at least twice a year. FMLA specifically permits intermittent use, meaning use when the employee is unable to work unexpectantly because of a mental health condition.


The FMLA permits use for the care of an employee’s spouse, minor child, or parent who is unable to work or perform regular daily activities due to a mental health condition. Similarly, employees may use FMLA leave to care for an adult child with a mental health disability if the adult child is incapable of self-care. For practical purposes, many mental health conditions fit the definitions in the FMLA of serious health conditions and disability. Finally, the FMLA provides up to 26 work weeks of military caregiver leave per year to care for a servicemember and some veterans with serious mental health conditions. The employee must be the spouse, son, daughter, parent, or next of kin of the servicemember.


The DOL also reiterated the FMLA’s requirement of confidentiality, including that any employee medical records be kept in separate files and protection from retaliation (prohibition on “interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right.”)


If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul F. Keneally, the author of this piece, here, or at (585) 258-2882.


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