Susan Gross Sholinsky and Tiffany Sarchet, attorneys in the Employment, Labor & Workforce Management practice, were quoted in EHS Today, in “Regulatory Update: Don’t Forget the FMLA and Mental Health,” by David Sparkman. (Read the full version – subscription required.)

Following is an excerpt:

The Department of Labor (DOL) has issued new guidelines explaining to employers when the Family and Medical Leave Act (FMLA) applies to mental health conditions. The changes were announced by DOL’s Wage and Hour Division (WHD).

This newly published guidance issued by WHD includes Fact Sheet # 28O: Mental Health Conditions and the FMLA and Frequently Asked Questions on the FMLA’s mental health provisions. …

The new WHD guidance notes that, although FMLA leave to permit an employee to care for a child with a serious health condition is generally available only when the child is under the age of 18, an employee should be granted FMLA leave to care for an adult child, if the child’s serious health condition also satisfies the definition of a disability, say attorneys Susan Gross Sholinsky and Tiffany Sarchet of the law firm of Epstein Becker & Green.

Who Else Is Included?

The lawyers remind employers that regulations developed by the Equal Employment Opportunity Commission (EEOC) under the Americans with Disability Act (ADA) should inform them as to whether an employee’s adult child’s serious health condition also qualifies as a disability warranting FMLA leave. This policy was previously explained in WHD Fact Sheet #28K, although not specifically referencing mental health conditions. …

Inpatient care for a mental health condition might include something like time spent in a residential care facility for treatment of an eating disorder or substance abuse problem. Examples of “continuing treatment” include ongoing counseling by a clinician, such as a licensed clinical social worker, psychologist or psychiatrist, say Sholinsky and Sarchet. …

Employers are prohibited from interfering with or retaliating against any employee who seeks to exercise rights under the FMLA, Sholinsky and Sarchet stress. Violations of these rules can be costly to employers: Employees who claim violations of the FMLA can seek redress through the WHD or in court.

Related reading:

Workforce Bulletin, “U.S. DOL Releases Guidance on FMLA Leave and Mental Health,” by Susan Gross Sholinsky and Tiffany Sarchet.

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