With Mental Health Claims Rising, the DOL Issues a New "Fact Sheet on Mental Health and FMLA"
Posted by chapteradmin on Jun. 8, 2022 / Legal Updates / Subscribe 0
By: Miriam L. Rosen, McDonald Hopkins
A recent EEOC report on fiscal year 2021 charges of discrimination confirms what employers already know - that disability discrimination claims based on mental health conditions are increasing at a rapid pace. With employers seeking guidance on how to properly address these issues, the DOL has stepped in with a new Fact Sheet on Mental Health Conditions and the FMLA.
The EEOC data on rising mental health claims
The EEOC reports in its fiscal year 2021 (ending Sept. 30, 2021) that 37.2% of charges included disability-related claims under the ADA. Of those ADA claims, nearly 30% alleged discrimination based on mental health conditions. In contrast, in 2011, mental health claims accounted for 20% of ADA charges. In particular, anxiety claims have more than doubled from 5.3% (1,362) in 2011 to 11.6% (2,639) of all ADA claims in 2021.
The DOL Fact Sheet provides guidance
Many employers have responded to what they are seeing in the workplace by adding employee assistance programs and other resources to help employees deal with these conditions. Yet, employers often struggle with how to handle employee time off and leave requests associated with mental health conditions. The DOL has now offered employers some guidance in a new Fact Sheet # 280 that addresses when the FMLA applies to mental health conditions. The Fact Sheet provides guidance on when a mental health condition is covered by the FMLA and offers examples of situations in which the FMLA would provide job protected leave for mental health conditions.
The Fact Sheet reminds employers that FMLA leave for a mental health condition may be available for the employee’s own condition or to provide care for covered family members who are unable to work or perform other regular daily activities because of a mental health condition that qualifies as a serious health condition.
For example:
Wyatt uses one day of FMLA leave to travel to an inpatient facility and attend an after-care meeting for his fifteen-year-old son who has completed a 60-day inpatient drug rehabilitation treatment program.
The Fact Sheet also addresses another FMLA leave issue that often challenges employers: how to handle leave for an adult child with a mental health condition. The Fact Sheet notes: “[a] parent may use FMLA leave to care for a child 18 years of age or older who is in need of care because of a serious health condition, if the individual is incapable of self-care because of a mental or physical disability. For practical purposes, some mental health conditions may satisfy both the definition of “disability” and the definition of “serious health condition,” even though the statutory tests are different.”
The DOL then provides this example:
Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and was recently released from several days of inpatient treatment for a mental health condition. She is unable to work or go to school and needs help with cooking, cleaning, shopping, and other daily activities as a result of the condition.
For more information about FMLA leave for the care of a child 18 years of age or older with a serious health condition, see Fact Sheet #28K and WHD Administrator's Interpretation No. 2013-1.
The DOL issued the Fact Sheet in May, which marks Mental Health Awareness Month. Employers should review the Fact Sheet to understand their compliance obligations under the ADA and FMLA to properly accommodate and/or provide leave time in the same way that they would respond to physical disabilities. Beyond required compliance, it makes good business sense to support employees’ mental health to ensure a successful and productive workforce.
This article was written by Miriam L. Rosen, who is Secretary of Detroit SHRM and Chair of the Labor and Employment Law Practice Group in the Bloomfield Hills office of McDonald Hopkins PLC, a full service law firm. She can be reached at [email protected] or at (248) 220-1342. Additional articles addressing the many employment law issues impacting businesses can be found at: https://mcdonaldhopkins.com/Insights
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. June 2022.
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