Saturday, November 26, 2022

Mental Stress Leave: Time with Employer Among Eligibility Factors

During the past two years, we’ve had several employees claiming they are dealing with depression and anxiety/stress. Can they file for leave under the Family and Medical Leave Act (FMLA) for these claims?

Although it isn’t automatic, employees can file for leave under the federal Family and Medical Leave Act (FMLA) and/or California Family Rights Act (CFRA) under certain circumstances.

Medical Certification

Not all claims of mental stress are eligible for these leaves, but if a doctor examines the individual and completes and signs a medical certification that the individual is incapacitated by mental stress, the employee may be eligible for the leave.

Indeed, FMLA (mirrored in this respect by CFRA) states that “a serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care… or continuing treatment by a health care provider….”

The COVID-19-related pandemic has exacerbated claims of people suffering feelings of uncertainty, anxiety, irritation, anger, and denial.

It is not uncommon to lack motivation, have trouble sleeping or concentrating and to feel tired, overwhelmed, burned out, sad, and even depressed. Consequently, these requests for time off are escalating.

Short-Term Employees

Calls to the CalChamber Labor Law Helpline in recent months more often than not involve situations with very short-term employees.

Therefore, remember that to qualify for both of these leaves, employees have to have worked for the employer for a year or more, and to have worked at least 1,250 hours in the immediately preceding year.

Accordingly, these short-term employees will not be entitled to either leave. FMLA covers employers with 50 or more employees within 75 miles, but CFRA covers employers with five or more employees, so the employee count may be an easy requirement to satisfy.


Column based on questions asked by callers on the Labor Law Helpline, a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.

Dana Leisinger
Dana Leisinger
Dana Leisinger joined the CalChamber in 2000 and currently serves as an HR adviser. She has advised employers on matters such as employment law, wrongful termination, discrimination, sexual harassment and wage and hour issues. She also has conducted seminars and training and guided employers through various levels of governmental investigations. Leisinger holds a J.D. from the McGeorge School of Law, University of the Pacific.

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