In May, the U.S. Department of Labor issued guidance in the form of two documents, a fact sheet and an FAQ, outlining employer obligations to allow employees unpaid leave under the Family Medical Leave Act (FMLA) for mental health conditions. While these documents do not create new legal obligations for employers like school districts, they do clarify DOL’s position that allowing leave for certain mental health conditions is required under FMLA. Thus, districts must be careful not to deny this leave to employees simply because the condition reported is not a “physical” illness or injury.

FMLA requires employers to provide employees with job-protected leave for “serious health conditions,” including when the employees themselves have the conditions or when the employee needs to care for a “spouse, child or parent” experiencing the condition. A condition qualifies as a “serious health condition” when the condition requires in-patient care or continuing care by a health care provider, both of which are defined further in the law. The law requires employers such as school districts to provide up to 12 weeks of FMLA leave to qualifying employees per year. The May guidance specifies that “serious health conditions” may include mental health conditions.

The fact sheet and FAQ provide useful examples as to when a mental health condition might qualify for FMLA leave. The examples include scenarios in which the employee is the one incapacitated by a mental health condition and might be entitled to leave, such as when the employee experiences pervasive anxiety that impacts their ability to work. The documents also provide insight on the more complicated questions about when an employee may take leave to care for a family member experiencing a pervasive mental health condition.

The guidance further clarifies the FMLA’s grant of 26 weeks of work leave to military caregivers also encompasses mental health conditions that incapacitate the service member or veteran. For instance, an employee may be entitled to FMLA leave to care for a spouse who is a veteran experiencing a mental health condition that made the veteran medically unfit for military duties, or that entitles the veteran to services from the Department of Veteran’s Affairs or makes him or her unfit for work.

School districts need to be aware that many of their employees may be entitled to FMLA leave due to mental health conditions impacting the employees themselves or their family members. Further, district administrators need to ensure they are not denying FMLA leave solely because the employee is not reporting a physical ailment or injury and that they are giving mental health conditions proper consideration. We encourage administrators to read the guidance in full. Contact OSBA’s legal division at (855) 672-2529 if you have questions about the guidance or FMLA generally. For assistance or representation in a specific issue, please contact your district’s legal counsel.


Posted by John R. Price on 6/17/2022