FMLA for ADHD: when it counts and what the certification needs

Does ADHD qualify for FMLA?

The FMLA doesn't name ADHD either way. Under 29 CFR 825.113(a), a serious health condition is an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. What counts as a serious health condition walks through the full test.

The definition includes mental conditions. DOL Fact Sheet #28O puts it plainly: "A serious health condition can include a mental health condition." ADHD isn't named in the DOL's lists of example conditions. It isn't on the list at 825.113(d) of conditions that ordinarily do not qualify either, and that same paragraph says: "Mental illness or allergies may be serious health conditions, but only if all the conditions of this section are met."

Neither point decides your case. The serious-health-condition test decides it. The DOL's page on mental health and the FMLA describes the chronic-condition route: "A chronic condition whether physical or mental (e.g., rheumatoid arthritis, anxiety, dissociative disorders) that may cause occasional periods when an individual is unable to work is a qualifying serious health condition if it requires treatment by a health care provider at least twice a year and recurs over an extended period of time."

The regulation's version is the chronic serious health condition at 825.115(c). How intermittent FMLA works covers that route in full.

Can you get intermittent FMLA for ADHD?

Intermittent leave is "FMLA leave taken in separate blocks of time due to a single qualifying reason", under 825.202(a). The other form is a reduced leave schedule, which "reduces an employee's usual number of working hours per workweek, or hours per workday".

For your own serious health condition, 825.202(b) requires a medical need for leave that "can be best accommodated through an intermittent or reduced leave schedule". It reaches "planned and/or unanticipated medical treatment", so scheduled appointments sit inside it. It also reaches absences where you are incapacitated because of a chronic serious health condition "even if he or she does not receive treatment by a health care provider".

What the certification has to show depends on the kind of leave. For planned treatment, 825.306(a)(6) asks for the medical necessity and "an estimate of the dates and duration of such treatments and any periods of recovery". For leave that "may result in unforeseeable episodes of incapacity", 825.306(a)(7) asks for the medical necessity and "an estimate of the frequency and duration of the episodes of incapacity". Either estimate is a clinical finding from the evaluation. It is an estimate, not a cap or a quota, but if your absences change significantly in frequency or duration, 825.308(c) lets your employer ask for recertification sooner.

Intermittent time draws on the same entitlement: up to 12 workweeks in a 12-month period under 29 CFR 825.200, unpaid unless paid leave is substituted under 825.207. Under 825.205(a)(1), that entitlement "may not be reduced by more than the amount of leave actually taken". Reporting and increments are in the intermittent FMLA guide.

Certicare is a telehealth service where leave and accommodation paperwork is completed and signed by a state-licensed provider after an evaluation. For your own ADHD, that means the FMLA certification, including the intermittent-leave estimate where the evaluation supports one, on your employer's or leave administrator's own form where one is required. Turnaround is usually within 24 hours after we have everything needed. Before you start, check the FMLA's eligibility tests: your employer needs 50 or more employees within 75 miles of your worksite, and you need 12 months of employment and 1,250 hours of service in the preceding 12 months.

There's usually no appointment, and a provider may follow up for more detail, including records of your treatment, before deciding. $49 covers one leave case: the clinical review, the forms that case needs, and any follow-up your employer or leave administrator asks for afterward. Completing our intake form starts the review; it does not guarantee a signature, and if the review does not support your request you are refunded in full.

What about ADHD and burnout?

The FMLA asks the same question whatever the reason for time off is called, including when there is more than one reason: the condition has to meet the serious-health-condition definition, and the certification's medical facts have to support the need for leave.

With ADHD and burnout together, the certification describes what the evaluation finds. For burnout on its own, read Burnout and FMLA.

What goes on the certification?

29 CFR 825.306(a) sets out what an employer may require. The entry that carries the medical case is (a)(3): "A statement or description of appropriate medical facts regarding the patient's health condition for which FMLA leave is requested. The medical facts must be sufficient to support the need for leave. Such medical facts may include information on symptoms, diagnosis, hospitalization, doctor visits, whether medication has been prescribed, any referrals for evaluation or treatment (physical therapy, for example), or any other regimen of continuing treatment". The operative words are "may include". A diagnosis is not required on the certification.

Entry (a)(4) asks for "information sufficient to establish that the employee cannot perform the essential functions of the employee's job". For intermittent leave, (a)(6) or (a)(7) adds the medical-necessity statement and the estimate. What goes in those entries is what the evaluation shows.

Under 825.306(b), your employer may use the Department of Labor's optional form or another form with the same basic information, but it may not require information beyond what the regulations allow. If your own provider won't complete it, the guide for when a doctor won't fill out FMLA paperwork covers what to do.

The certification is due within 15 calendar days after your employer's request, under 825.305(b), unless that is not practicable despite your diligent, good-faith efforts or your employer allows more time. If it comes back incomplete or insufficient, 825.305(c) requires your employer to state in writing what is needed and to allow seven calendar days to cure it, "unless not practicable under the particular circumstances despite the employee's diligent good faith efforts." FMLA for depression and anxiety covers that fix, and who can complete the form under 825.125, a list wider than physicians.

How do you get FMLA for ADHD?

Start with eligibility under 29 CFR 825.110. Your employer needs 50 or more employees within 75 miles of your worksite. You need 12 months of employment and 1,250 hours of service in the preceding 12 months.

Eligibility is necessary, not sufficient. The absence also has to be for a qualifying serious health condition and be designated as FMLA leave. Under 825.300(d), once your employer has enough information, it must tell you in writing whether the leave will count as FMLA leave. When that step goes wrong, Can an employer deny FMLA explains the grounds.

Notice depends on whether you can see the leave coming. For planned treatment, 825.302(a) asks for "at least 30 days advance notice before FMLA leave is to begin" where the need is foreseeable. If 30 days is not practicable, "notice must be given as soon as practicable."

For leave you can't foresee, 825.303(a) asks for notice "as soon as practicable under the facts and circumstances of the particular case". Under (b), "Calling in 'sick' without providing more information will not be considered sufficient notice to trigger an employer's obligations under the Act." Under (c), you follow your employer's "usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances."

Then the certification, once your employer asks for it. That's the piece a state-licensed provider completes and signs after an evaluation, and it's the piece you can start now.

Where the FMLA applies, 29 CFR 825.220(c) bars your employer from using FMLA leave as a negative factor in employment actions or counting it under no-fault attendance policies. At the same time, under 825.216, you have no greater right to reinstatement than if you'd been continuously employed, and it is the employer that must show you would not otherwise have been employed. If it goes wrong anyway, there is a guide for being fired for taking leave.

FMLA or an accommodation?

The FMLA gives job-protected time off. The ADA is a separate law about reasonable accommodation, and it reaches employers with 15 or more employees. Both can apply to the same person, and one doesn't rule out the other.

The ADA has its own test. Under 29 CFR 1630.2(g)(1)(i), a disability includes "A physical or mental impairment that substantially limits one or more of the major life activities of such individual". A request for an accommodation doesn't have to be in writing or use the words "ADA" or "reasonable accommodation", and it can be made to a supervisor in conversation.

The ADA side, including accommodations at work, is on Is ADHD a disability. Leave as an accommodation is on ADA leave.

You don't need to know how your employer will designate it before you start. Answer the intake questions, and a state-licensed provider completes and signs the FMLA certification your leave needs, where the evaluation supports it.