As part of mental health awareness month in May, the U.S. Department of Labor published updated FMLA guidance and resources for employees and employers. The goal is to remove some of the obstacles employees face in treating mental health conditions. The National Alliance of Mental Illness (NAMI) reports that 1 in 5 adults in the U.S. experience mental illness each year, 1 in 20 adults in the U.S. experience serious mental health illness, and “at least 8.4 million people in the U.S. provide care to an adult with mental or emotional health issues.” These statistics underscore both the pervasiveness mental illnesses in the U.S. and the need to address and accommodate them in the workplace. There are no FLMA changes, but the information serves as a reminder to employers that the need to treat mental health illnesses with care and the same as any other request for leave. Covered employers should take the time to review the FLMA mental health guidance and ensure their policies are complaint. Issues around mental health and the workplace are increasingly relevant as employees continue to navigate through COVID – 19 and other daily pressures.
The new Fact Sheet #280: Mental Health Conditions and the FMLA and updated FAQ page are a great place to begin and a great resource for employees as well. As a reminder, “An eligible employee may take FMLA leave for their own serious health condition, or to care for a spouse, child, or parent because of a serious health condition. A serious health condition can include a mental health condition. Mental and physical health conditions are considered serious health conditions under the FMLA if they require 1) inpatient care or 2) continuing treatment by a health care provider.” Both Fact Sheet #280 and the FAQ page provide examples of reasons why an employee may take leave. They include conditions that require inpatient care, “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,” “Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, either 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).” As with any condition covered under the FMLA, request for leave may also be to take care of a spouse, parent, or child with a serious health condition. The DOL’s Employer’s Guide to the Family and Medical Leave Act is another basic resource and starting point for anyone looking to ensure current policies are complaint or drafting policies for the first time.
Reminder that the maintaining confidential records is key to FMLA compliance. Employers are required to maintain:
- Basic payroll and identifying employee data, including: Name, address, and occupation, Rate or basis of pay and terms of compensation, Daily and weekly hours worked each pay period, Additions to and deductions from wages, and Total compensation paid.
- Dates FMLA leave is taken (which must be designated in the records as FMLA leave),
- Hours of FMLA leave used if leave is taken in increments of less than a day,
- Copies of FMLA notices provided by an employee to the employer and by the employer to its employees concerning the FMLA (including any written request for leave from the employee as well as any required notice provided to the employee concerning FMLA leave),
- Any documents, including electronic records, describing employee benefits or employer policies and practices regarding the taking of paid or unpaid leave;
- Premium payments for employee benefits, and
- Records of any dispute between the employer and an employee regarding the designation of leave as FMLA leave, such as emails or other written statements regarding a disagreement on the designation of the employee’s FMLA leave request.
Medical records and other FMLA records should be kept separate from other personnel files and must also meet ADA or GINA requirements where applicable.
Like other conditions, mental health conditions depending on the needs of the employee can be covered by either the FMLA or the ADA. “The ADA defines disability as a physical or mental impairment that substantially limits one or more major life activities.” For employers looking for ways to better accommodate requests, both NAMI and The Job Action Network (JAN) have published helpful list of specific accommodations. Flexibility and open communication are perhaps the most important tools when dealing with either FMLA or ADA requests.
Beyond fulfilling legal obligations and avoiding legal action, clear and effective communication around leave policies and removing obstacles for employees seeking to take leave for mental health conditions can benefit business. First keep in mind that anyone seeking to leave under the FMLA, is most likely experiencing a sudden change or worsening of a condition in their or their loved one’s lives. Most employees only request leave when they need to. Strong leave policies may promote retention, productivity, and remove stress from both the employer and employee.
Employers in the tri-state area, should also keep in mind that New York and New Jersey have Family Leave Acts that differ from the FMLA in several ways. Neither state’s Family Leave Act allow for leave for the employee’s own health conditions. New York does give paid sick leave to the individual employee and paid family leave to take care of family members. The amount of leave provided will vary based on the number of employees and the reason why someone may take leave are more expansive then under the FMLA. (N.Y. Lab. Law § 196-b). New Jersey reduces the number of employees required to constitute a covered employer from 50 to 30. (N.J.S.A. 34:11B-3). NJFLA leave is unpaid, but employees can apply for Family Leave Insurance benefits to care for or bond with a new born or adopted child, care for a family member, etc. (N.J.S.A. 43:21-27(o)). State paid or unpaid leave and FMLA leave run concurrently. When drafting or revising FMLA policies, notice of state policies may or may not be required. But it never hurts to have comprehensive policies.