DOL Guidance On Mental Health Conditions May Cause Employers Anxiety

Administering intermittent FMLA leave can be a very challenging task for employers. Recently, the Department of Labor issued guidance as to when eligible employees of covered employers may use FMLA leave for their own or a family member’s mental health condition. Two items jumped out to me as being particularly relevant for employers.

First, the DOL specifically identified anxiety as a chronic condition that would qualify an otherwise eligible employee for FMLA leave, assuming the anxiety causes occasional periods when an individual is incapacitated and requires treatment by a health care provider at least twice a year. With the rapid increase of mental health diagnoses in the U.S., including anxiety, it is inevitable that employers will see an increase in employee FMLA requests based on anxiety.

Second, the DOL provided the following example of a qualifying reason for FMLA:

Karen is occasionally unable to work due to severe anxiety. She sees a doctor monthly to manage her symptoms. Karen uses FMLA leave to take time off when she is unable to work unexpectedly due to her condition and when she has a regularly scheduled appointment to see her doctor during her work shift.

What the DOL did not discuss, and what is likely to vex employers, is what are employers to do with employees like Karen who also have legitimate performance issues? It is not uncommon for employees who are struggling at work to find the work environment stressful. Can employees with a qualifying anxiety disorder refuse, for example, to attend what they understandably believe will be a stressful performance review? What about meetings with supervisors? Even if employees do not have performance issues, would the approved FMLA leave allow them to take time off to avoid the most stressful but also most important times of their job, such as end-of-quarter deadlines? Further compounding the challenge for employers is that the DOL has long opined that FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases even less than an hour.

These are not easy questions, even for the most conscientious and well-meaning employers. What employers can and should do is ensure their FMLA policies and forms are compliant and up-to-date, and that HR and management are properly trained on the company’s FMLA obligations and options, including the need to manage leaves closely and the option to request recertification when appropriate.

The Takeaway

Intermittent FMLA leave for anxiety and other mental health conditions is on the rise and poses unique challenges for employers. It is important for employers to ensure their FMLA policies are legally compliant and that their management and HR professionals are given the tools and training necessary to prevent an unwitting violation.