Employers report a sharp increase in employees requesting mental health leave and accommodations in recent years. This may be in part attributable to a welcome de-stigmatization of mental illness, but has the unfortunate side effect of increasing the burden on employers to accommodate these requests.

Federal FMLA versus ADA. The FMLA offers a maximum of 12 weeks of unpaid leave to eligible employees for circumstances such as the need to care for the employee’s own illness, including a mental illness. Employers can use the same forms and apply the same requirements as they would for a physical illness or injury, such as requiring a caregiver’s note indicating the length of the employee’s expected absence. As with a physical illness or injury, intermittent leave may be taken for therapy or other required appointments.

Under the ADA, however, leave is only one accommodation that might be sought for a mental illness. Other possibilities include changes in shifts, schedules, or work duties, and these accommodations do not necessarily have an end date as does leave under the FMLA. Like the FMLA, one accommodation that could be sought under the ADA is the ability to take intermittent time off, which is one of the biggest headaches for employers. Remember, employers may require medical justification for intermittent leave under either statute and require employees to abide by the employer’s customary notice practices.

Undue Burden. The only limit placed by the ADA on the required accommodations, as with a physical disability, is if there is no way to accommodate the employee without undue burden to the employer. Importantly, the employer need not provide the accommodation requested by the employee, but it must interact with the employee in a good-faith attempt to find an accommodation that works for both parties.

By contrast, the FMLA protects an employee’s job for up to 12 weeks and no more. The employer may choose to allow more time, but it is not required to do so.

Evidence of Discrimination. Although an employer’s obligation goes no further than 12 weeks (in the case of the FMLA) or undue burden (in the case of the ADA), refusal to comply with reasonable requests could be interpreted as discrimination against employees invoking their rights under those statutes. For example, if an employee is nearing the end of an FMLA leave but a doctor indicates that another three days is required, it might be seen as unreasonable/ discriminatory to refuse. By contrast, if a doctor’s note provides no return-to-work date, it would probably be seen as reasonable to tell the employee that their job cannot be held for them. Similarly, if an employee’s accommodation under the ADA has had a negative impact on the employer – e.g., productivity has measurably suffered, or other employees are unable to cover the ill employee’s responsibilities – refusal to continue this or another accommodation might be acceptable under the law. Without that kind of evidence, such refusal might be found unlawful.
Some states and municipalities have their own rules. When in doubt, consult legal counsel.

Stokes Wagner will continue to monitor updates and will provide additional updates as they become available. If you have any questions, do not hesitate to contact a Stokes Wagner attorney.

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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.