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Minorities & Mental Health, An FMLA Reminder

August 3, 2022
Mercedes de la Rosa

As we bid farewell to July as National Minority Mental Health Awareness month and celebrate the launch of the 988 Suicide and Crisis Lifeline, inclusive mental health support is fresh on U.S. employees’ minds. While mental health does not discriminate, access to care, cultural stigma, and lower quality care continue to challenge those one in five U.S. adults who experience mental health symptoms every year. As the U.S. workforce continues to experience mental health symptoms, it has become increasingly important for employees and employers to know how to promote a Mental Health-Friendly Workplace.

In its own effort to reduce barriers to treatment, the Department of Labor’s Wage and Hour Division published updated FMLA Guidance on Mental Health through Fact Sheet #280 and a FAQ section on May 25, 2022.

FMLA Refresher

The Family and Medical Leave Act (FMLA) entitles employees of public agencies, schools, and certain companies to take 12 weeks of unpaid leave in a 12-month period. This time is job-protected meaning that the employee must be restored to their original position or an equivalent upon return from leave. During the leave period group health insurance coverage is maintained.

Eligible employees are those who work for a covered employer, for at least 12 months, work 1,250 hours (exceptions for airline crew) for the same employer in the 12 months preceding the leave, and work at a location where the employer has at least 50 employees within 75 miles of the employee’s worksite.

Important Takeaways

Certain mental health conditions qualify under FMLA as either a serious health condition by the employee or their immediate family member.

  1. Which Mental Health Condition?
    Mental Health conditions are considered serious health conditions if they i) require inpatient care or ii) require continuing treatment by a health care provider. Continued treatment is defined as one that i) incapacitates an individual for three consecutive days or chronic conditions that require treatment by a health care provider at least twice a year.
  2. For Employees or care of Employee family members
    Often the first thought is for the employee themselves. But importantly those who are caring for an immediate family member may qualify as well. An immediate family member is a spouse, parent, or child who is unable to work or perform other regular daily activities. While normally a child needs to be under 18 years old, parents caring for a child with a disability may also qualify. FMLA specifically uses the Equal Employment Opportunity Commission’s regulations under the Americans with Disabilities Act (ADA); which means those suffering from conditions that are easily concluded to be substantially limiting like major depressive disorder, bipolar disorder, and post-traumatic disorder may qualify. For family members caring for qualifying service members or veterans, 26 workweeks of military caregiver leave is available under FMLA. A child does not need to be diagnosed prior to eighteen years of age and a service member does not necessarily need to have manifested symptoms during active duty to qualify.
  3. For rehabilitation programs too
    Due to a serious health condition including that which requires inpatient care, FMLA coverage extends to those or those caring for someone who is receiving inpatient treatment for substance abuse or eating disorders or other mental health disorders treatment.


Notes for Employers

  1. Confidentiality
    Employers must maintain an employee’s records confidentiality, though supervisors and managers can be informed on a need-to-know basis. Medical information must be kept separately from routinely kept employee personnel records.
  2. No Discouragement – denial or interference
    While an employer can require an employee to submit a certification from a health care provider, there should be absolutely no discouragement or interference with the use of FMLA. On June 1, 2022 the Seventh Circuit specifically warned employers about the interference standard when it reversed summary judgment in favor of an employee who retired early due to work related PTSD when he was threatened for use of FMLA time:

    “Rights under the Act would be significantly diminished if it permitted employers to actively discourage employees from taking steps to access FMLA benefits or otherwise to interfere with or restrain such access. The Act was designed to accommodate ‘the legitimate interests of employers,’ but we see no legitimate interest for employers in impeding access to FMLA benefits by subterfuge, concealment, or intimidation.”

    Ziccarelli v. Dart, 35 F.4th 1079 (U.S. 7th Cir. 2022) (citing to § 2601(b)(3)) (emphasis in original.)
  3. There are no magic words
    An employee does not need to explicitly say FMLA in their first leave request to qualify. Instead courts have found that notice requirements are not onerous and should be low. To be clear, an employee is not required to use the letters F-M-L-A to request leave.  Courts often expect an employer to give the employee the benefit of the doubt when it comes to a potential leave of absence under the FMLA.

    A phone call to your trusted legal counsel to ensure compliance with employer leave obligations is always recommended. 

If you or someone you know is experiencing a mental health crisis, please call or text: 988. Veterans push 1. Para español oprima 2.


Mercedes de la Rosa, Associate
735 N. Water St., Suite 610,
Milwaukee, WI 53202
P: (414) 436-0353 / F: (414) 436-0354