During the COVID-19 pandemic, we started receiving an increasing number of questions from employers relating to employees seeking accommodations or leave for stress and anxiety-related mental health issues. In several of these situations, the employee requested intermittent Family and Medical Leave Act (FMLA) leave as a result of these issues. The medical certification provided by the employee’s healthcare provider indicates that the employee may need to miss work several times a month due to unforeseeable panic attacks or other incapacitating symptoms.

In practice, the employer reports that the employee is citing the need to take FMLA leave after being asked to assist with important business tasks such as inventory or completion of payroll. In other cases, the employee regularly takes FMLA leave directly after being counselled for performance issues. The employee states that the stress and anxiety from work triggers his or her need to be out. The employer seeks legal counsel on how to balance the employee’s medical needs with the employee's regular absence at times that are crucial for the functioning of the business.

Unfortunately, there are no easy answers to this scenario.

The FMLA leaves employers with few options when confronted with employees who claim the need to use intermittent leave. If the frequency or reasons for the leave request are inconsistent with the original medical certification, the employer can request updated information from the employee’s medical provider. If employers suspect that the medical certification does not meet the criteria for an FMLA serious health condition, they can seek a second, and if necessary, third opinion. Practically, it can be difficult to find a healthcare provider willing to provide a second opinion, especially for mental health issues.

The FMLA does not allow employers to deny leave because of disruption to the business or based on their suspicions that the employee is manipulating the leave requests to avoid certain work tasks. Practically, the employer may need to cross-train existing workers or hire additional staff to cover unanticipated absences.

The employer can also try to identify and deal with workplace stressors that trigger the need for intermittent FMLA leave. The FMLA does not prevent employers from meeting with employees to explore how work is exacerbating the employees’ medical condition or to explore ways that the employer can assist the worker to avoid the need for leave where possible.

Absent statutory changes to the FMLA, there is no legal magic bullet that can quickly resolve these issues without presenting significant risk to the business. Employers should carefully review each situation with legal counsel. Employers should also develop a strategy to try to balance both the employee’s medical issues with their need to make sure crucial business needs are met.

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