This as-told-to essay is based on a conversation with Craig Levey, an employment law attorney in Boston, about how employees can request leave from work for mental health reasons. The following has been edited for length and clarity.
I’ve noticed an explosion of workers who are taking leave for mental health reasons, including anxiety, depression, and suicidal ideation. It’s become one of the top issues I’m dealing with in terms of employment law.
People are saying, “I’m struggling with these issues. I’ve met with my physician or my therapist, and I’ve been diagnosed. It’s affecting my job. Do I qualify for leave?”
A lot of people don’t really know where to start looking. Here are the steps I suggest they take.
1. Know your options
First, get educated. Do your research before you start communicating with the employer regarding leave, because you want to know what your options are, rather than going into it without that information.
You’ll want to look at their state and federal laws, and consult with an employment law attorney in your state.
The employee should also figure out what options they have in their employee handbook. Their company may offer short-term disability leave, or they may qualify for leave because they have a serious health condition under the Family and Medical Leave Act (FMLA), which is also a federal law.
That works in conjunction with the Americans with Disabilities Act (ADA) in determining whether you have a disability and whether you can request reasonable accommodations for that disability.
2. Gather evidence
It depends on what law or policy you’re trying to invoke, but in many cases, companies want supporting evidence that you have a serious medical condition or a disability.
A lot of employees will meet with their physician and get a doctor’s note with a diagnosis, how it affects their day-to-day life activities, and what sort of timeframe they need for leave.
With something like burnout, the question is, how does it manifest? Is it affecting your day-to-day life activities? Is it triggering some other diagnosis? It’s important to figure out whether you actually have a disability under the law or not, because that triggers other protections.
3. Notify your employer
Under the ADA, once the employee notifies the company that they have a disability, the employer has an obligation in the US to engage in an interactive process. They need to discuss that disability and whether the accommodation that they’re requesting is reasonable.
Some companies — typically mid- to large-sized firms — will have a third-party administrator that processes the paperwork. Often, smaller companies don’t have a third-party administrator, so you’re often dealing with somebody within the company.
4. Keep a paper trail
When an employee is applying, let’s say, for FMLA leave, they fill out the paperwork and often have a physician’s note, which they submit to their employer. They’re going to keep records of that. They’re also going to keep records of all their communications with the company.
They should make sure that they get, in writing, that they’ve been approved and the timeframe they’ve been approved for.
Far too often, I’ve seen scenarios where employees have been approved for leave, and they’ve let it lapse. It may end, and they didn’t realize it, and then they get terminated because the company considers them to have abandoned their job. You’ve got to stay on top of it — it shouldn’t be a scenario where you think, “Oh, I’ve just been approved. That’s it.”
5. Know there are laws preventing retaliation
One issue is how your employer responds when you disclose your mental health issues or request leave. Some employers respond well and do the right thing: listen, assess the situation, and process your leave paperwork. The employee takes their leave, comes back to their same job, and everything’s great. That’s a best-case scenario.
Unfortunately, far too often, employers engage in retaliation. I’ve noticed that a lot of employers care about their bottom line and productivity, so they consider people who request leave for mental health issues to be a burden.
Either the employee will disclose the disability and the company will retaliate then, or at some point during their leave. Or shortly after they return from leave, there could be a termination, a reduction in pay, a demotion, or other retaliation.
There’s legal case law, both state and federal, about retaliation. Some laws — the FMLA being one of them — have anti-retaliation provisions in them. They’ll specifically state that employers can’t retaliate against an employee for taking FMLA leave.
It comes down to the facts of the employee’s situation; there’s no one-size-fits-all.
If someone gets fired and if they believe it’s been disability discrimination or retaliation, then they can hire an attorney and potentially lead to litigation.
I believe nothing is more important than health
More and more these days, I’m speaking to people whose mental health issues have become so severe that it’s clear to me they need some sort of accommodation for these disabilities. In many cases, they will tell me, “Look, I need help because this isn’t working.” I just try to guide them in the right direction.
My philosophy is that nothing is more important than your health. If you genuinely need to take leave, whether it’s for disability or some other reason, I suggest you take it.
Over the last 15 years of practicing law, I’ve definitely noticed patterns. When I’m doing consultations with clients over the course of an hour, we’ll discuss everything in their work situation. What’s the climate? Who do they report to? Are there other examples of people being fired for this situation? With whom should they be speaking? Is there a potential safe space?
I’ll definitely give my two cents, from my experience, on how I think they should process it. Of course, I’m not a physician, so I’m not going to play that role.
I’m also not naive. Could taking leave for mental health negatively affect your job? Yeah. And unfortunately, I’ve seen it far too often. In those situations, that’s why the paper trail is so important.
It’s critical to protect yourself because we prepare for the worst-case scenario, but we hope for the best.
Do you have a story to share about taking leave for mental health reasons? Contact this reporter at [email protected].
