Issue 124 – June 2022
New FMLA Mental Health Resources Issued by the Department of LaborBy Kelly Trainer Policky, Employment Practices Manager
According to the National Institute of Health, nearly one in five U.S. adults live with mental illness. Employees coping with mental illness may face barriers to getting help due to social stigma or a lack of available resources. In 2020, only 46.2 percent of adults with mental illness received mental health services. In May, as National Mental Health Awareness Month drew to a close, the Wage and Hour Division (WHD) of the federal Department of Labor issued educational materials to aid employers in their compliance with the Family and Medical Leave Act (FMLA) when employees have a mental health-related need for FMLA leave. Those resources include the following:
- Fact Sheet #28O: Mental Health Conditions and the FMLA
- Frequently Asked Questions
- Press Release
- Blog – The FMLA: Essential for Mental Health-Friendly Workplaces
In the recently issued guidance, the WHD explained that a mental health condition can constitute a “serious health condition” under the FMLA when it requires either inpatient care or continuing treatment by a health care provider. The same is true under the California Family Rights Act (CFRA). California employers using these new federal resources should be mindful of their obligations under the CFRA as well, which is similar, but not identical to the FMLA. Eligible employees may be able to take up to 12 workweeks of leave, which can be taken continuously or intermittently, due to their own serious health condition or the serious health condition of a family member. The FMLA defines family member to include child, spouse, and parent. The CFRA defines family member to include spouse, domestic partner, parent, child of any age, grandparent, grandchild, and sibling.
In addition to providing employees with leave under the FMLA and/or CFRA, employers may also be required to provide reasonable accommodations to an applicant or employee who has a mental disability, which includes “having any mental or psychological disorder or condition that limits a major life activity.”  A reasonable accommodation is a modification or adjustment that is:
- Effective in enabling an applicant with a disability to have an equal opportunity to be considered for a desired job; or
- Effective in enabling an employee to perform the essential functions of the job the employee holds or desires; or
- Effective in enabling an employee with a disability to enjoy equivalent benefits and privileges or employment as are enjoyed by similarly situated employees without disabilities. 
Examples of reasonable accommodation may include but are not limited to making existing facilities used by applicants and employees readily accessible to and usable by individuals with disabilities; allowing applicants or employees to bring assistive animals to the work site; transferring an employee to a more accessible worksite; providing assistive aids and services such as qualified readers or interpreters to an applicant or employee; job restructuring; providing a part-time or modified work schedule; permitting an alteration of when and/or how an essential function is performed; providing an adjustment or modification of examinations, training materials or policies; modifying an employer policy; modifying supervisory methods (e.g., dividing complex tasks into smaller parts); providing additional training; permitting an employee to work from home; providing a paid or unpaid leave for treatment and recovery, consistent with 2 CCR section 11068(c); and providing a reassignment to a vacant position, consistent with 2 CCR section 11068(d). 
In its blog post on the FMLA and mental health, the WHD noted that “all have a role to play in promoting mental-health friendly workplaces.” The WHD provided a link to the Campaign for Disability Employment for potential resources, and noted that employers and employees can contribute to the promotion of a mental-health friendly workplace in the following ways:
- Organizational leadership can set the tone for a supportive, inclusive workplace.
- Managers and supervisors can provide accommodations and promote assistance programs.
- Co-workers can listen and be a source of support to colleagues.
- Workers with mental health conditions can ask for what they need to perform their best.
Members needing assistance with managing an FMLA/CFRA leave of absence or a reasonable accommodation / interactive process situation are encouraged to contact their regional risk manager or the Authority’s employment hotline.
 2 CCR § 11065(d)(1).
 2 CCR § 11065(p)(1).
 2 CCR § 11065(p)(2). Note the reasonableness of these examples is determined on a case-by-case basis.< Back to Full Issue Print Article