FMLA for Mental Health Conditions: What Qualifies and What HR Must Do

When Does FMLA for Mental Health Apply?

The employee must first be eligible and work for a covered employer; see FMLA eligibility requirements. After that, the question is whether the condition is a "serious health condition." Section 825.113(d) says mental illness "may be" a serious health condition, "but only if all the conditions of this section are met." There is no list of qualifying diagnoses. The test is about care and incapacity, and there are two routes.

Route 1: Inpatient care

Inpatient care means "an overnight stay in a hospital, hospice, or residential medical care facility," including any related period of incapacity or later treatment (§ 825.114). A psychiatric hospitalization or an overnight stay in a residential treatment facility meets this route without any further test.

Route 2: Continuing treatment

Section 825.115 lists several ways to meet this route. Two come up most in mental health cases:

"Incapacity" means "inability to work, attend school or perform other regular daily activities" because of the condition, its treatment, or recovery (§ 825.113(b)).

Two details matter in practice.

Chronic-condition absences do not need a doctor visit each time. Under § 825.115(f), absences due to a chronic condition qualify "even though the employee or the covered family member does not receive treatment from a health care provider during the absence, and even if the absence does not last more than three consecutive, full calendar days." An employee with a certified chronic anxiety disorder who cannot work on a given Tuesday does not need a note for that Tuesday.

The regulation says "in-person visit." For the incapacity-plus-treatment category, § 825.115(a)(3) says treatment "means an in-person visit to a health care provider." Much mental health care is now delivered by video. Verify whether DOL currently counts a telehealth visit as an in-person visit, and on what conditions; see WHD Field Assistance Bulletin 2020-8. Do not deny a request on this ground without checking current DOL guidance and counsel.

Who counts as a health care provider?

The definition in § 825.125 is broader than "physician." It includes doctors of medicine or osteopathy, clinical psychologists, nurse practitioners, clinical social workers, and physician assistants authorized to practice under state law, and any provider from whom the employer's group health plan will accept certification of a serious health condition to substantiate a claim for benefits. Whether a particular therapist or counselor qualifies depends on that list and the state license.

What does not qualify?

An employee who is stressed, tired, or wants a "mental health day," with no incapacity and no treatment relationship, generally does not have a serious health condition. The day may still be available under your PTO policy or a state or local sick leave law. Check the labor agency in each state where you have employees for applicable state and local leave laws. Do not decide this by instinct. If the facts might qualify, the certification is how you find out.

The Employee's Own Condition

An eligible employee may take up to 12 workweeks in the applicable 12-month period for a serious health condition that makes the employee "unable to perform the functions of the position." Under § 825.123(a), that standard is met if the provider finds the employee unable to work at all or unable to perform any one of the essential functions of the job. It is also met for time spent in treatment: an employee "who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment." Therapy and medication-management appointments during work hours can be FMLA leave.

For substance use disorders, leave may be taken for treatment by or on referral from a health care provider, but "absence because of the employee's use of the substance, rather than for treatment, does not qualify" (§ 825.119(a)).

Leave to Care for a Family Member

An eligible employee may take FMLA leave to care for a spouse, parent, or child with a serious mental health condition. Care is not limited to physical tasks. It "encompasses both physical and psychological care" and includes "providing psychological comfort and reassurance which would be beneficial to a child, spouse or parent with a serious health condition who is receiving inpatient or home care" (§ 825.124(a)). The employee need not be the only person available to help.

Adult children

This is where requests are most often wrongly denied. A "son or daughter" under § 825.122(d) is a child under 18, or a child 18 or older who is "incapable of self-care because of a mental or physical disability" at the time leave is to begin. DOL Fact Sheet #28K breaks that into four conditions, all required:

1. The adult child has a disability—a physical or mental impairment that substantially limits a major life activity, using the EEOC's ADA definitions (§ 825.122(d)(2)).
2. The adult child is incapable of self-care because of that disability, meaning the child "requires active assistance or supervision to provide daily self-care in three or more of the activities of daily living" or instrumental activities of daily living, such as bathing, dressing, eating, cooking, shopping, taking public transportation, or paying bills (§ 825.122(d)(1)).
3. The adult child has a serious health condition.
4. The parent is needed to care for the child because of the serious health condition.

Three points from the DOL fact sheets:

• The disability "does not have to have begun or been diagnosed before the employee's child turned 18." Onset at any age counts.
• Fact Sheet #28O lists major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia as conditions that should easily be found substantially limiting.

DOL's example is a mother who takes leave to care for a 24-year-old daughter just released from inpatient mental health treatment, who cannot work or attend school and needs help with daily activities. A parent of an adult child with depression who lives independently and manages daily life would generally not meet the self-care condition. You may ask for a medical certification on Form WH-380-F or an equivalent.

Intermittent Leave

Mental health leave is frequently intermittent: a day or two during a flare-up, or a recurring appointment. When medically necessary, intermittent or reduced-schedule leave must be allowed (§ 825.202(b)), and for chronic conditions it may be taken for incapacity even without treatment during the absence (§ 825.202(b)(2)).

Your controls are the same as for any intermittent leave:

• Certification: It should give "an estimate of the frequency and duration of the episodes of incapacity" (§ 825.306(a)(7)). That estimate is the benchmark for everything later.
• Call-in rules: The employee must follow your usual and customary call-in procedures, absent unusual circumstances (§ 825.303(c)).
• Recertification: Generally no more often than every 30 days and in connection with an absence, with the exceptions in § 825.308.

For the mechanics, see our FMLA intermittent leave guide and the article on FMLA medical certification, recertification, and second opinions.

Recognizing the Request and Certifying It

The employee in the opening example gave enough notice. An employee "does not need to expressly assert rights under the Act or even mention the FMLA" (§ 825.301(b)). When the employer lacks enough information, it "should inquire further" (§ 825.301(a)). From there, the sequence is the usual one: eligibility and rights notice within five business days, a certification request allowing at least 15 calendar days, and designation within five business days of having enough information. Our FMLA forms guide for employers shows which DOL form goes with each step.

On the certification itself, DOL's optional Form WH-380-E tells the provider that he or she "may, but [is] not required to" include a diagnosis, and notes that some state or local laws may not allow that disclosure. You may not ask for more than §§ 825.306 through 825.308 allow.

Confidentiality

The rules:

• Certifications, recertifications, and medical histories created for FMLA purposes must be kept "as confidential medical records in separate files/records from the usual personnel files" (§ 825.500(g)). Where the ADA applies, its confidentiality requirements govern as well.
• Supervisors and managers may be told about necessary work restrictions and accommodations. Fact Sheet #28O adds that they may be informed of the employee's need to be away from work. They do not need the diagnosis.
• If the certification needs authentication or clarification, contact with the provider must be made by a health care provider, an HR professional, a leave administrator, or a management official. "Under no circumstances" may it be the employee's direct supervisor (§ 825.307(a)).

Where the ADA Comes In

A mental health condition that is a serious health condition will often also be a disability under the ADA, but § 825.702(b) is explicit that these "are different concepts, and must be analyzed separately." The ADA generally applies to employers with 15 or more employees and has no length-of-service requirement, so it may apply when the FMLA does not.

Points of overlap to watch:

• Leave after FMLA runs out: The FMLA gives 12 workweeks; the ADA may require additional unpaid leave as a reasonable accommodation unless it would cause undue hardship. The EEOC's 2016 resource on employer-provided leave says an employer with a maximum-leave policy may have to grant leave beyond it as an accommodation. See transitioning from FMLA leave to ADA accommodation.
• Accommodation instead of leave: You may offer a schedule change or other accommodation, but you may not require the employee to take an accommodated job "in lieu of" FMLA leave the employee is entitled to (§ 825.702(d)(1)).
• Return to work: A fitness-for-duty certification is allowed under a uniformly applied policy and only for the condition that caused the leave (§ 825.312). The EEOC states that requiring an employee to be "100%" healed violates the ADA if the employee can do the job with or without reasonable accommodation.
• Medical inquiries: The FMLA does not prevent you from following ADA procedures for requesting medical information (§ 825.306(d)); see medical information and inquiries under the ADA.

For the accommodation side in detail, read ADA accommodations for anxiety and depression. Cases where all of these laws apply to one employee are the core of our Leave and Accommodation Management course, a two-day, instructor-led workshop built around case studies and exercises.

Frequently Asked Questions

The Bottom Line

Treat a mental health leave request exactly as you would any other: recognize it without waiting for the word "FMLA," send the notices on time, let the certification decide, keep the medical information out of the supervisor's hands, and start the ADA analysis before the FMLA balance reaches zero.

Our FMLA Guide links every article in this series. The FMLA FAQs and Glossary of FMLA Terms are quick references, and mental health leave as an employer priority covers the policy side. For structured practice on overlapping FMLA, ADA, and state obligations, see the Leave and Accommodation Management course.

This article is general education, not legal advice for a specific situation.