Mental Health Conditions and the FMLA

The Family and Medical Leave Act obligates all public entities, including cities, to provide FMLA. However, not every city will have eligible employees. For more information on FMLA generally, see KLC’s blog post What is the Family and Medical Leave Act?

The U.S. Department of Labor provided information on leave for mental health conditions under the FMLA in May 2022.¹ An employee who is eligible for FMLA may take leave for their own serious health condition or to take care of their spouse, child, or parent with a serious health condition. The FMLA considers a mental health condition a serious health condition if it requires inpatient care or continuing treatment by a health care provider.

Inpatient care for a mental health condition involves an overnight stay in a hospital or other medical care facility. Continuing treatment for a mental health condition may include conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment. This treatment may involve multiple health care provider appointments involving a psychiatrist, clinical psychologist, or clinic social worker, or a single appointment with follow-up care.² Continuing treatment for a mental health condition may also include chronic conditions that cause occasional periods where an individual is incapacitated and requiring treatment by a health care provider at least twice a year.³

An employee may be required to submit certification from a health care provider to their employer to support the employee’s need for FMLA leave. A diagnosis is not required, but the information within the certification must be sufficient to support the employee’s need for leave.

There are several reasons an employee may take leave for a mental health condition under the FMLA:

• An employee can take up to 12 work weeks for their own serious mental health condition where the employee cannot perform their essential duties due to the condition.
• An employee can take leave to care for a family member with a mental health condition. This typically includes a spouse, minor child, or parent who is unable to work or perform daily activities due to their serious mental health condition.
• An employee may take leave to care for an adult child who has a serious mental health condition if the individual is incapable of health care due to the condition.⁴

See Adult Children Under the FMLA for more information about FMLA for an employee who takes leave to care for a child 18 years or older.

An eligible employee may also take military caregiver leave under the FMLA for up to 26 workweeks in a single 12-month period for a covered service member or certain veterans. They must use the leave to care for a covered service member and certain veterans with a serious injury or illness, including a mental health condition. An employee can be an eligible caregiver if the recipient is their spouse, daughter, parent, or next of kin of the service member.⁵

If the leave is for a covered service member, the service member must have experienced the serious injury, such as a mental health condition, in the line of duty which may make the service member medically unfit to perform their duties. The serious injury can also result from the aggravation in the line of duty on active duty of a condition that existed before the member began service.⁶

If the leave is for a veteran, the veteran must have experienced a serious injury or illness which made them medically unfit to perform their duties, qualified the veteran for benefits from the Department of Veterans Affairs, or substantially reduced the veteran’s ability to work.⁷ The injury or illness may have occurred during military service but did not manifest until the veteran left active duty. An employer may require an employee to present certification to support the leave.⁸ More information on military caregiver leave for a current service member can be found here and information for a veteran can be found here.

The U.S. Department of Labor has provided a list of frequently asked questions regarding mental health and FMLA.

Contact KLC Personnel Services Consultant Michael Simon for more information on this or any personnel-related matters.

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¹ Fact Sheet #280: Mental Health Conditions and the FMLA, U.S. Dept. of Labor (May 2022)
² Id.
³ Id.
⁴ Id.
⁵ Id.
⁶ Id.
⁷ Id.
⁸ Id.