A Key to FMLA’s Success: Supporting Our Employees When Mental Health Issues Arise |

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The following article was first published on PCs by Littler Mendelson FMLA Insights Blog. It is reposted here with permission.


Customer calls are part of my daily life, more and more during the COVID-19 pandemic.

Stress. Anxiety. The Depression.

The causes are as numerous as the stars in the sky.

Simply put, a growing number of our employees are struggling with serious mental health issues that prevent them from coming to work.

This is our new reality, and as employers we need to know how to manage and support our employees in these difficult times.

As employers, we need to know how to manage and support our employees in these difficult times.

Recently, the US Department of Labor released guidance reminding us that the FMLA covers situations where an employee’s mental health condition prevents them from working.

The DOL provides several examples of situations triggering the FMLA in its new Fact Sheet #28O and FAQs:

For example, Karen is sometimes unable to work due to severe anxiety. She sees a doctor every month to manage her symptoms. Karen uses FMLA leave to take time off when she is unexpectedly unable to work due to her condition and when she has a regular appointment to see her doctor during her shift.

  • Appointment with a doctor to manage an anxiety state.
  • Attend a family counseling session for a spouse who is in an inpatient addiction treatment program
  • Caring for an adult child recently discharged from several days of hospitalization for a mental health issue.

For example, Anastasia uses FMLA leave to care for her daughter, Alex. Alex is 24 years old and has just been released from several days of hospitalization for a mental health problem. She is unable to work or go to school and needs help with cooking, cleaning, shopping and other daily activities due to her condition.

  • Caring for a service member.

For example, Gordon’s wife began showing symptoms of PTSD three years after being honorably discharged from overseas military service. Gordon is using FMLA leave for two weeks to transport his wife to and from outpatient treatment at a Veterans Administration hospital and to help with her daily needs while incapacitated.

Perspectives for employers

It’s not brain science. And DOL’s advice is certainly not earth-shattering.

But as we recognized Mental Health Awareness Month in May, it reminds us where our priorities should be.

When our employees are going through difficult personal times, that’s when they need to rely on us the most.

I’ve shared this before, but there are a few important principles to keep in mind when managing an employee with a mental health issue.

  1. The vast majority of our employees use FMLA leave appropriately and for genuine medical needs. This should be our frame of reference when faced with an employee’s request for leave due to a mental health issue. When you approach the situation with a level of sincerity rather than cynicism, you are more likely to be met with sincerity in return. To that end, let’s not assume without any basis that our employee is trying to abuse his leave.
  2. The FMLA advisory doesn’t always come in words. There are a growing number of cases in which courts have found that changes in employee behavior may suggest that the employee is suffering from a serious medical condition and that the employer is obliged to treat this behavior as a request FMLA leave. To be clear, an employee is not required to use the FMLA letters to request leave, and this highlights that courts often expect an employer to give the employee the benefit of the doubt when he this is a possible leave under the FMLA. Therefore, it is essential that employers identify all situations in which the employee may be suffering from a health problem and proactively engage the employee in a discussion of what we can do to help.
  3. Let empathy be your guide. When there are obvious abnormalities in the behavior of the employee, it is essential that the employer consider whether they can provide assistance to the employee before pressing the dismissal button. When communicating with an employee, use words that show that you are on the same side as the employee and that you are there to help. If furlough is the only option, it’s far better to help them take the time they need to get better and then get back to work. Let your communications reflect this sincerity and empathy. Like a David Fram Disciple, I advise my clients that they are best served by first asking, “How can I help you?” These five simple but powerful words go a long way in ensuring that the employee gets the help they need. If they refuse this assistance after due notice and fair warning, then and only then do we consider more drastic options.
  4. Be patient with medical certification and overall responsiveness. The FMLA tells us that an employee is required to return a medical certificate within 15 days of receiving it from you. But what if their sanity gets in the way of timely certification. If you have reason to believe that the delay is due to their condition, let empathy guide you again. I’m not saying anything goes, but a few extra days to return certification might be one of the simple things you can do to show you care.
  5. Train managers to help you achieve the kind of workplace you’re trying to cultivate. Frontline managers often fail to recognize when an employee may need FMLA-protected leave, especially when mental health issues are present. Worse, some make derogatory comments about an employee’s use of FMLA leave. Indeed, many front-line managers are simply not properly trained to recognize when an employee has provided enough facts to trigger the FMLA and to take appropriate action to respond to the employee’s request. In my experience, this is perhaps the biggest problem for employers because it creates easy liability.

Every once in a while, we need this simple reminder:

Be sincere.

Be empathetic.

FMLA and ADA compliance will follow.


About the Author: Jeff Nowak is a shareholder of Littler Mendelson PC, with two decades of experience advising and litigating on behalf of employers on a wide range of complex employment law issues. He is a recognized leader on FMLA and ADA issues.

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