Can You Get Time Off Work for Mental Health? Eligibility and Pay

Yes, you can take time off work for mental health, and federal law protects your job while you do. The Family and Medical Leave Act (FMLA) gives eligible employees up to 12 weeks of unpaid, job-protected leave a year for a serious mental health condition, and the Americans with Disabilities Act (ADA) can require your employer to grant leave or a modified schedule as a reasonable accommodation. Whether you qualify depends on your employer’s size, how long you’ve worked there, and the nature of your condition.

Does a Mental Health Condition Qualify

Under the FMLA, mental health conditions count as serious health conditions. The Department of Labor specifically recognizes severe anxiety, major depressive disorder, bipolar disorder, obsessive compulsive disorder, and schizophrenia as examples.¹ A condition qualifies if it requires inpatient care (an overnight stay in a hospital or treatment center) or continuing treatment by a healthcare provider. Chronic conditions like anxiety or depression that flare up periodically meet the continuing-treatment standard as long as you see a provider at least twice a year.²

The ADA works differently. Rather than a set number of weeks, it requires employers to provide reasonable accommodations for employees whose mental health condition substantially limits a major life activity like concentrating, sleeping, regulating emotions, or interacting with others.³ A reasonable accommodation can include a leave of absence, a modified schedule to attend therapy, altered break times, telework, or changes in how a supervisor assigns tasks.⁴ The two laws can overlap, and in many situations you’ll want to use both.

Who Qualifies

FMLA eligibility has three requirements for private-sector workers. You must have worked for your employer for at least 12 months (they don’t need to be consecutive), logged at least 1,250 hours during the 12 months before leave starts, and work at a location where your employer has 50 or more employees within a 75-mile radius.⁵ The FMLA also covers all public-sector employers, including federal, state, and local government agencies, regardless of size.⁶

The ADA has a simpler threshold. It applies to any private employer with 15 or more employees, with no minimum tenure or hours requirement.⁷ If your employer has between 15 and 49 workers, you won’t qualify for FMLA but you may still be entitled to leave as an ADA accommodation. That gap catches a lot of people off guard.

State and local laws may expand these protections further. Some cover smaller employers or have shorter tenure requirements. Thirteen states and the District of Columbia have enacted paid family and medical leave programs that can provide partial wage replacement during your time off. Check your state labor department’s website for specifics.

How Much Time Off and Whether It’s Paid

FMLA leave can be taken as a single continuous block or broken into smaller increments called intermittent leave. The Department of Labor’s own example describes an employee with severe anxiety who takes time off when symptoms flare up and also uses FMLA leave for regularly scheduled therapy appointments during her shift.² Intermittent leave is often the most practical option for ongoing mental health treatment because it lets you keep working while protecting the hours you need for appointments or difficult stretches.

FMLA leave itself is unpaid, but you or your employer can require that you use accrued paid time off, vacation, or sick leave at the same time. When that happens, you receive your paycheck under the paid-leave policy while the absence counts as FMLA-protected leave.⁸ Some employers also offer short-term disability insurance, which can provide partial wage replacement if your condition prevents you from working. Check whether your plan covers mental health conditions and what waiting period applies before benefits begin.

Your employer must maintain your group health benefits under the same conditions as if you were still working.² You’re still responsible for your share of the premium. If you’re on unpaid leave and your payment is more than 30 days late, your employer can drop your coverage after giving you at least 15 days’ written notice. Even if coverage lapses, your employer must restore it when you return without making you meet new qualification requirements or sit through a waiting period.⁹

How to Request the Leave

Start by reviewing your employee handbook. The FMLA requires you to comply with your employer’s normal procedures for requesting leave, so following those internal rules matters.

If the need for leave is foreseeable, like a planned hospitalization or a regularly scheduled therapy appointment, you must give at least 30 days’ advance notice. When the need is unexpected, such as a sudden crisis or a severe depressive episode, give notice as soon as you’re able.¹⁰ You do not need to mention the FMLA by name in your first request. You just need to share enough detail for your employer to recognize the leave might qualify, such as saying you need time off for a medical condition, how long you expect to be out, and whether you’ll need ongoing appointments.¹¹

Your employer can require medical certification from your healthcare provider to verify you have a serious health condition. The form covers the date the condition began, its expected duration, and a statement about why you need leave. Your provider is not required to include your specific diagnosis.¹² You have at least 15 calendar days after your employer’s request to submit the certification.¹³

If your employer considers the certification incomplete or insufficient, they must tell you in writing exactly what’s missing and give you seven calendar days to fix it. If you don’t cure the deficiency, your employer can deny the leave.¹³ Take this deadline seriously. Missing it is one of the most common ways people lose FMLA protection they were otherwise entitled to.

Once your employer has enough information to decide whether your leave qualifies, it must issue a designation notice within five business days telling you whether the leave is approved as FMLA-protected.¹⁴

Confidentiality

Both the FMLA and the ADA impose strict confidentiality requirements. Your employer must keep your medical records separate from your regular personnel file and limit access to them.¹ Under the ADA, medical information can be shared only with supervisors who need to know about necessary work restrictions, first aid and safety personnel, and government officials investigating ADA compliance.¹⁵

If your employer needs to verify your certification, a human resources professional, leave administrator, management official, or another healthcare provider may contact your doctor to clarify or authenticate the form. Your direct supervisor is never allowed to contact your provider.¹⁶

Coming Back to Work

Under the FMLA, your employer must restore you to the same job or one with equivalent pay, benefits, and working conditions when your leave ends.² Before letting you back, your employer can require a fitness-for-duty certification from your provider, but only if the company has a uniform policy requiring this of all employees returning from leave for serious health conditions. The certification can only address the condition that caused your leave, and your employer cannot require second or third opinions on it.¹⁷ You pay for the certification yourself, but your employer must have told you upfront (in the designation notice) that it would be required. If they didn’t, they can’t demand one later.

If you’re ready to return but still have some limitations, the ADA’s interactive process comes into play. Your employer cannot insist you be “100% healed” as a condition of returning. If you can perform the essential functions of your job with a reasonable accommodation, like a modified schedule, reduced workload during a transition period, or telework, your employer must explore those options with you.¹⁸ The interactive process is a back-and-forth conversation, not a formality. Your employer reviews your doctor’s restrictions, discusses what accommodations might work, and reaches an agreement about next steps. If the first accommodation doesn’t solve the problem, either side can restart the process.

When Leave Can Be Denied

Not every request has to be granted. If you don’t meet the FMLA eligibility requirements, your employer has no obligation under that law. Under the ADA, an employer can deny an accommodation request if it would cause undue hardship, meaning significant difficulty or expense relative to the employer’s size, financial resources, and the nature of its operations. An employer claiming undue hardship can’t rely on generalized conclusions; it must show, based on the specific facts, why the particular accommodation would be too costly or disruptive.¹⁹

A narrow FMLA exception applies to “key employees,” defined as salaried workers who are among the highest-paid 10 percent of all employees within 75 miles of the worksite. An employer can deny job restoration to a key employee if reinstating them would cause substantial and grievous economic injury to the business, but the employer must give specific written notices at the start of leave and again before denying restoration, and the leave itself still cannot be denied.²⁰

If Your Employer Retaliates

Taking mental health leave or requesting an accommodation is legally protected, and your employer cannot punish you for it. Under the FMLA, it is illegal for an employer to deny valid leave, discourage you from using it, count FMLA absences against you in an attendance policy, or factor your leave into decisions about promotions, discipline, or termination.²¹ The EEOC has successfully sued employers for firing workers who returned from psychiatric hospitalization, demoting employees who took leave for depression, and harassing an employee about attending therapy until he felt forced to quit.²²

If you believe your rights have been violated, you have two options. You can file a complaint with the Department of Labor’s Wage and Hour Division by calling 1-866-487-9243; your name and the details of your complaint are kept confidential.²³ You can also file a private lawsuit, but you generally have two years from the last violation to sue, or three years if the violation was willful.²⁴ For ADA violations, complaints go to the Equal Employment Opportunity Commission instead.

1
U.S. Department of Labor. Fact Sheet #28O: Mental Health and the FMLA – Frequently Asked Questions
2
U.S. Department of Labor. Fact Sheet #28O: Mental Health Conditions and the FMLA
3
U.S. Equal Employment Opportunity Commission. The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work
4
U.S. Department of Labor. Accommodations for Employees with Mental Health Conditions
5
U.S. Department of Labor. FMLA Frequently Asked Questions – Eligibility
6
U.S. Department of Labor. Fact Sheet #28: The Family and Medical Leave Act
7
U.S. Equal Employment Opportunity Commission. Small Employers and Reasonable Accommodation
8
U.S. Department of Labor. FMLA Frequently Asked Questions
9
eCFR. 29 CFR 825.212 – Employee Failure to Pay Health Plan Premium Payments
10
eCFR. 29 CFR 825.302 – Employee Notice Requirements for Foreseeable FMLA Leave
11
U.S. Department of Labor. Fact Sheet #28E: Requesting Leave Under the Family and Medical Leave Act
12
U.S. Department of Labor. Fact Sheet #28G: Medical Certification Under the Family and Medical Leave Act
13
eCFR. 29 CFR 825.305 – Certification, General Rule
14
eCFR. 29 CFR 825.300 – Designation Notice
15
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA
16
eCFR. 29 CFR 825.307 – Authentication and Clarification of Medical Certification
17
eCFR. 29 CFR 825.312 – Fitness-for-Duty Certification
18
U.S. Equal Employment Opportunity Commission. Employer-Provided Leave and the Americans with Disabilities Act
19
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA
20
eCFR. 29 CFR 825.219 – Rights of a Key Employee
21
U.S. Department of Labor. Fact Sheet #77B: Protection for Individuals Under the FMLA
22
U.S. Equal Employment Opportunity Commission. Select List of Resolved Cases Involving Mental Health Conditions Under the ADA
23
U.S. Department of Labor. How to File a Complaint
24
U.S. Department of Labor. FMLA – Family and Medical Leave Act Advisor