Reminder: The FMLA Covers Mental Health

The Department of Labor (DOL) has issued a fact sheet reminding employers that the Family Medical Leave Act (FMLA) includes mental health coverage. Employees covered by the FMLA can take time off for mental health or to care for a family member with mental health issues.

According to the DOL fact sheet, covered employees are those that have worked for a covered employer for at least twelve months, have at least 1,250 hours of service during the twelve months before the leave, and work at a place where the employer has at least fifty employees within seventy-five miles. In general, public employees are covered, as are private employees of employers of fifty or more employees within the twenty or more workweeks in the current or preceding calendar year. This includes joint employers or successors in interest to another covered employer. Public and private elementary and secondary schools are covered, regardless of the number of employees. Special rules apply to flight crews.

What the FMLA Requires

The FMLA provides for twelve work weeks of leave per year. It also requires employers to continue the employee’s health benefits just as if the employee had not taken leave, and to restore the employee to the same or virtually identical position after having taken leave. Working with the employer, employees can take leave a day at a time, for example to take care of a family member by driving them to doctor’s appointments. FMLA leave does not have to be paid, but it can be in conjunction with an employer’s benefits plan.

There is a special provision for members of the armed forces. Under the FMLA, a covered employer must grant an eligible employee up to twelve workweeks of unpaid, job-protected leave during any twelve-month period for mental health issues that arise for the employee’s spouse, child, or parent on covered active duty or has been notified of an impending order to covered active duty. Employees can take FMLA leave to care for a covered service member, including for mental health issues. For members of the regular armed forces, covered duty is duty during deployment of the member of the armed forces to a foreign country or international waters. For members of the reserve components of the armed forces (members of the National Guard and reserves), covered duty is duty during deployment of the member of the armed forces to a foreign country under a call or order to active duty in support of a contingency operation. Employers may deny FMLA leave to a spouse, son, daughter or parent of a member of the armed forces if the duty is not covered duty.

However, a covered employer must grant an eligible employee up to a total of twenty-six workweeks of unpaid, job-protected leave during a single twelve-month period to care for a covered servicemember with a serious injury or illness. This includes mental illness. The employee must be the spouse, child, parent, or next of kin of the covered servicemember.

A covered servicemember is either (1) a current member of the armed forces (including a member of the National Guard or reserves) who is undergoing medical treatment, recuperation, or therapy, is in outpatient status, or is on the temporary disability retired list, for a serious injury or illness, or (2) a veteran of the armed forces (including the National Guard or reserves) discharged within a five-year period before the family member first takes military caregiver leave to care for the veteran and who is undergoing medical treatment, recuperation, or therapy for a qualifying serious injury or illness. A veteran who was dishonorably discharged does not meet the FMLA definition of a covered servicemember. A qualifying injury or illness is one that prevents the service member from performing their duties.

Mental Health Coverage

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.

An employee suffering from depression, for example, may take FMLA leave for inpatient care and then for appointments with a health care professional. The employer may ask for certification, which the doctors may provide without providing a diagnosis. Leave may also be taken to provide care for a spouse, child, or parent who is unable to work or perform other regular daily activities because of a serious health condition. An employee can take FMLA leave to take care of a spouse, child, or parent who has a mental health condition. Employees must comply with their employer’s usual requirements for requesting leave and provide enough information for their employer to reasonably determine whether the FMLA may apply to the leave request. Employees do not have to provide medical information to the employer, but may need to provide certification from a medical professional that they have a serious medical condition that prevents them from working, or that they are caring for a spouse, child, or parent with a serious medical condition.

A Sample Case

In Valdivia v. Township High School District, the Seventh Circuit observed that “Noemi Valdivia worked successfully as an administrative assistant for Township High School District…until she began experiencing severe psychological problems that ultimately led to the end of her employment there.” She complained to her supervisor, the principal of the school, of crying fits, inability to concentrate, and a lack of energy, among other problems. She asked for her twelve-month position to be changed to a ten-month one, and mentioned that she was considering other jobs that might better accommodate her new condition. Ultimately, she quit her job, before asking for it back. After seeing a psychiatrist, she was diagnosed with major depressive disorder and generalized anxiety disorder. She sued the school district for not offering her FMLA leave.

Ultimately, the Seventh Circuit Court of Appeal upheld the jury’s verdict favoring Valdivia. The lesson for employers is that they should offer FMLA leave to a covered employee even if the employee does not ask for it, so long as the employer recognizes a serious medical condition exists.


Covered employers should remember that the FMLA covers mental as well as physical illness, and so they should not deny FMLA leave to employees suffering from mental illness.

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