Gordon Law

Employer Requirements

Family Medical Leave Act and Mental Health – Employer Requirements


The effects of mental health are far reaching and touch each person, family and business.  Ensuring that your team is healthy, both physically and mentally, is a vital part of being an employer.  For those businesses that are covered under the Family Medical Leave Act (FMLA), you should be aware that employees  are eligible for leave.

First, you need to determine if your business is covered under the FMLA.  Employers are required to abide by the FMLA if:

  • The business employees 50 or more employees; and
  • The employee has worked for at least 12 months.

FMLA requires a covered employer to provide an eligible employee with:

  • 12 weeks of leave each year;
  • To continue health benefits during the leave; and
  • To restore the employee’s position when the employee returns.

Please also note that the 12 week leave time does not need to be taken consecutively and may be intermittent.

As it relates to leave associated with mental health conditions, leave is available for the employee’s mental health along with the employee’s spouse, child or parent.  Mental health conditions that are eligible for leave must either result in (1) inpatient care; or (2) continuing treatment by a health care provider.  According to the Department of Labor, a serious mental health condition that requires continuing treatment includes:

  • 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); and
  • 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.

There are very specific rules concerning documentation, confidentiality and protection from retaliation.  A business’ failure to abide by these rules can give rise to legal action by both the government and a private cause of action by the affected employee.

Being attentive to the health of your team and following the mandates of the law are crucial to the success of  your business.  Similarly, recognizing the real and meaningful impacts of mental health and that those impacts may be as substantial (or more substantial) than physical health is vital for your business and its team.

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