New Guidance Issued by DOL Regarding Mental Health and the FMLA

At a time when more people appear to be struggling with mental health concerns, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) has taken steps to clarify applicable laws that would enable employees to take time off work to address either their own or a family member’s mental health conditions. Near the end of last month (May 2022) —Mental Health Awareness Month— the DOL-WHD issued Fact Sheet #28O and a related Frequently Asked Questions. The documents discuss mental health and leaves of absence under the Family and Medical Leave Act (FMLA). DOL is responsible for enforcing the FMLA, which entitles eligible employees of covered employers to take job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. 

The fact sheet does not create new laws or obligations for employers. Still, it provides a detailed discussion, along with concrete examples, explaining when eligible employees of covered employers may use FMLA leave for their or a family member’s mental health. 

Employers should ensure their employees are aware of the provisions in the FMLA and direct workers to Fact Sheet #28O and the FAQ. Employees should know that they cannot “get in trouble” or face retaliation for using FMLA to take time off. Employers should also be cognizant of the FMLA requirements that employers keep employee medical records, including any records regarding an employee’s mental health condition, confidential and separate from routine personnel files.