Purpose of this Template

The purpose of this template is to provide a legal and ethical framework for Mental Health Leave of absence, including how People Team representatives can best manage this when it comes up.

Introduction

There has been a documented dramatic increase in mental health conditions since the COVID pandemic. Challenges with mental illness not only impact the individual’s overall health, but runs the risk of impacting the workplace as well. Lost productivity hours, disruptions to team cohesion and hits to company culture can have lasting effects.

Getting ahead of the problem and supporting your team members who are experiencing a mental health condition is in the best interest of everyone involved. And this sometimes includes taking an extended leave from work. You might be asking yourself, “What are the parameters of leave?” “How much time away can they take?” “What constitutes a mental health condition?”

There are a few ways employees can take a mental health leave of absence, the most common is exercising their FMLA rights. We’ll run through the details below.

What is FMLA?

The Family and Medical Leave Act (FMLA) of 1993 is a United States labor law requiring covered employers to provide employees with job-protected, unpaid leave for qualified medical and family reasons. One of the qualified medical reasons that employees can exercise their FMLA is due to a serious illness including serious mental illness.

What Qualifies as a “Serious Mental Illness” under FMLA?

Under FMLA, a “serious mental illness” is defined as:

chronic conditions (e.g. anxiety, depression)
cause occasional periods of incapacitation for more than 3 consecutive days
require treatment by a health care provider at least 2x per year
and require inpatient care or ongoing treatment

Inpatient Care

Inpatient care includes an overnight stay in a hospital or in another care facility, such as a substance rehabilitation center or residential mental health treatment center.

Continuing Treatment

Continuing treatment is defined as:

ongoing treatment with a health care provider (e.g. psychiatrist, clinical psychologist, clinical social worker, mental health counselor)
or a single appointment with follow up care (e.g. prescription medication, outpatient rehabilitation, behavior therapy, etc.)

An employer may require an employee to submit a certification from a health care provider to support the employee’s need for FMLA leave. The information provided on the certification must be sufficient to support the need for leave, but a diagnosis is not required.

Ethical Framework

Workplace mental illness is serious and can have lasting impact on the individual’s health, their team, and the company as a whole. We recommend a proactive approach to employee’s mental health, specifically, addressing the issue before it turns into a situation where leave is inevitable. Programs such as mental health awareness training sessions, offering comprehensive mental health benefits and equipping managers with tools on how to broach the subject of mental health are excellent preventative measures.

Managers are best-suited to recognize when an employee’s behavior has changed. In fact, it has been argued that it is their responsibility to respond appropriately. There are a number of cases in which courts determined that changes in an employee's behavior alone imply that the employee is suffering from a serious health condition. Additionally, the employer is required to treat the change in behavior as a request for mental health leave. This is true even if the employee didn’t request FMLA leave. If an employee is exhibiting behavior that indicates they are suffering from a serious mental illness, managers must proactively engage the employee in a discussion about what support they need.

The good news is that the majority of employees do not falsify serious mental illness. In fact most individuals with a chronic mental health condition have learned to mask it, so it’s not uncommon for their managers to be surprised they need help. As our final recommendation, we encourage all leaders to lead with empathy, offer care and understanding. Mental illness is a silent killer and processing mental health leave will likely be a smooth one when we lead with a framework of care.

Example Mental Health Leave Options

Whole Company Mental Health Weeks: When the company closes down for a week (or specific period of time) to support everyone taking time off. When this happens, there is no work ‘fomo’ or the ‘post-vacation scaries’ that sometimes come with returning to work after taking time off. This also supports those employees who take less time off (mental health or otherwise) to take some much needed time.
Mental health days: These can be denoted in an HRIS system, but we suggest just including this as part of ‘hey I need a day off’ rather than tracking Mental Health time specifically. There is still stigma, whether from a manager, the employee themselves, or others, in taking Mental Health time off.
Half day breaks: scheduling all company half days, often on a Friday or Monday, are a mid-ground between giving the day off and getting work done. Some companies do this optionally, but we suggest if you implement it to make sure everyone takes their half a day off.
‘Summer’ Fridays: Similar to half day breaks, but taking Friday’s off. Sometimes this might be one Friday a month, or every other Friday, but the extra time back is a nice reprieve.
Unlimited PTO: The basics, but often used incorrectly. We suggest mandatory minimums and training managers and employees on how much time they NEED to take off. By training managers, you’re putting the imperative on them to work and coach their employees to take time off and not burnout. It means managers should be tracking and keeping aware. Sometimes, it is more effective to have minimums per quarter so the PTO is spread out.

Resources

Contributors to this Template

Mona Eshaiker, LMFT, Advisor
Jes Osrow SHRM-SCP, Co-Founder & DEI Specialist
Ayanna Kelly, DEI Product Manager & Mental Health & Latinx Culture Advisor
Alana Korol, Design & Communications Associate

www.risewithophr.com

OPHR: One Person Human Resources