Even before the coronavirus hit, mental health was a growing concern in the workplace. While not usually as obvious as physical illness, mental health issues, such as depression, had been taking a toll on workers.
Unfortunately, treating depression as an employee is a challenge. There is the initial hesitation many people feel when addressing a mental health problem and the difficulty in working out the logistical concerns for getting help or having an employer who understands the struggle the employee is going through.
To help employees obtain the necessary support for their depression, one of the primary tools available will be the Family and Medical Leave Act.
An Overview of the Family and Medical Leave Act (FMLA)
Signed into law in 1993, the FMLA provides eligible employees with up to 12 weeks of protected unpaid leave for qualified medical or family reasons. Some of these reasons include:
- Treating the employee’s serious health condition.
- Treating the employee’s immediate family member’s serious health condition.
- To bond with a newborn child.
- To bond with a child from foster care or adoption that was placed with the employee.
- The placement of a child (from foster care or by adoption) with the employee.
- A qualifying exigency relating to the employee’s spouse, child or parent who is in the military and on active duty.
To be eligible to take FMLA leave, an employee must also meet the following conditions:
- Work for a covered employer. Covered employers include private employers that have 50 or more employees (within 75 miles) for at least 20 workweeks in the current or prior calendar year, as well as federal, state and local employers.
- Have worked for the employer for at least 12 months. These 12 months do not need to be consecutive.
- Have worked at least 1,250 hours during the prior 12 months before taking FMLA leave.
Key Rights Provided By the FMLA
In addition to the 12 weeks of unpaid leave, the FMLA also provides a few key rights to employees.
First, the leave is protected. This means that upon returning from FMLA leave, the employer must provide the employee with his or her job back or an equivalent (or nearly identical) position, with respect to both job duties and compensation.
Second, even though the leave is unpaid, an employer must still maintain the employee’s healthcare insurance coverage during the FMLA leave as if the employee were still working.
Third, the medical information an employee provides to an employer to substantiate the employee’s request for FMLA leave must be kept confidential, including keeping medical records separate from personnel files.
Fourth, an employer may not interfere with an employee’s right to take FMLA leave. Interference refers to anything the employer does to restrict or prevent an employee from taking FMLA leave.
Fifth, an employer may not retaliate against an employee for taking or asking for FMLA leave or for complaining about an employer’s conduct that violates the FMLA.
Asking for FMLA Leave Due to Depression (Or Most Other Medical Reasons)
An employee who wants to ask your employer for FMLA leave to treat your depression, must meet certain requirements getting leave.
One of the first things to do is notify your employer. If your employer has an FMLA leave request procedure in place, be sure to follow it the best you can. However, employers are permitted to deviate from their own internal FMLA leave request procedures.
Generally, FMLA requires that employees give notice at least 30 days before the leave is set to begin, assuming the need for leave is foreseeable. When FMLA leave is needed unexpectedly, the employee must notify the employer as soon as practicable.
The notice of FMLA leave can be given orally or in writing. It’s best to make this request in writing if you anticipate any problems from your employer in granting your request.
There is no hard and fast rule about what the notice must say, but you’ll need to provide enough information to put your employer on notice that you need to take FMLA leave and give your employer an idea of when you’ll be taking the leave.
Even though the FMLA does not require you to provide a medical certification of your depression, your employer has the right to ask you to provide this. This requirement is important because it might be your employer’s way of confirming that you have a serious health condition.
The FMLA defines a serious health condition as “an illness, injury, impairment, or physical or mental condition that involves: (A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.”
The law is clear that depression may qualify as a serious health condition under the FMLA. But everyone’s depression will be different, requiring various forms of treatment and affecting them in different ways. Additionally, a diagnosis for depression may not be enough. To be a serious health condition under the FMLA, your depression must incapacitate you or prevent you from being able to work.
If your employer asks for a certification, it may need to include information from your doctor, therapist, counselor or other mental healthcare provider to show the extent to which your depression affects your ability to work, as well how much FMLA leave you need. While your employer can ask for a medical certification, you can decline to provide your employer with copies of your medical records.
The FMLA requires that you provide this certification within 15 days of your employer’s request, although you may have more time in certain situations. After making your FMLA leave request, your employer will have five days to tell you if you qualify. Absent extenuating circumstances, an employer that takes longer to decide could be liable for an FMLA interference violation.
It’s possible that your employer may ask for additional information before making their decision, including contacting your healthcare provider (in a manner that doesn’t violate HIPAA) to authenticate or clarify the information you provided or asking for a second medical opinion about your FMLA leave request. If your employer asks for a second medical opinion, it must be to validate your medical certification and your employer must pay for the second opinion.
Other Leave Options for Dealing with Depression
Depending on where you work, you might have access to medical leave that gives greater benefits than what the FMLA provides for. It’s possible that your employer might have its own leave policies that you can take to deal with your depression. Alternatively, you might live in a jurisdiction that offers better medical leave, like Washington, D.C.
D.C. employees taking medical leave under the DC Family and Medical Leave Act (DCFMLA) get 16 weeks of medical leave (in addition to 16 weeks of family leave). Also, the DCFMLA applies to private employers with just 20 or more employees. Compared to the FMLA, the DCFMLA applies to more employees and provides an extra four weeks of unpaid protected medical leave.
