Hostile Work Environment and FMLA: Can You Take Leave?
FMLA does not cover a hostile workplace itself, but it can cover a serious health condition it causes. Eligibility, retaliation protection, and deadlines.
FMLA leave can cover a health condition that harassment causes. It does not cover the hostile work environment itself.
You cannot take Family and Medical Leave Act (FMLA) leave for a hostile work environment as such. You can take it for a serious health condition, including a mental health condition, that the situation causes, if you and your employer meet the FMLA eligibility rules.
The FMLA also bars your employer from interfering with that leave or retaliating against you for taking it. The harassment itself is handled under other laws, such as Title VII and the Americans with Disabilities Act (ADA). For the broader rules on harassment claims, start with our guide to a hostile work environment.
Can You Take FMLA Leave for a Hostile Work Environment
FMLA leave is not available for a hostile work environment by itself, but it can cover a serious health condition the harassment causes. The FMLA is a medical and family leave law. It is not a harassment statute.
According to the U.S. Department of Labor's Wage and Hour Division (WHD), the FMLA gives eligible employees up to 12 workweeks of unpaid, job-protected leave in a 12-month period. One qualifying reason is a serious health condition that makes the employee unable to do the job.
To be eligible, you generally must meet all four of these conditions:
- You work for an employer the FMLA covers.
- You have worked for that employer for at least 12 months.
- You worked at least 1,250 hours in the 12 months before the leave.
- You work at a site with at least 50 employees within 75 miles.
If you meet those rules, the next question is your health. A bad workplace alone does not qualify for FMLA leave. The health condition and its treatment do.
What Qualifies as a Serious Health Condition
A mental health condition counts as a serious health condition under the FMLA only if it meets the same requirements as any other condition. The Department of Labor's rules, found at 29 Code of Federal Regulations (CFR) 825.113, apply this test to stress-related conditions too.
The condition must involve one of two things:
- Inpatient care.
- A period of incapacity with continuing treatment by a health care provider.
So a mental health condition from harassment can support FMLA leave when it meets the incapacity-and-continuing-treatment test. Feeling worn down by a hostile boss, with no treatment and no period of incapacity, does not meet the test.
Notice rules apply as well. When you can foresee the need for leave, you generally must give your employer 30 days' notice. When you cannot foresee it, you must give notice as soon as practicable.
Your employer can require medical certification from a health care provider. Ask your treating provider to complete the certification.
FMLA Protection Against Interference and Retaliation
Under 29 U.S. Code (U.S.C.) 2615, an employer may not interfere with, restrain or deny your FMLA rights. The same section bars an employer from discriminating or retaliating against you for using those rights.
The FMLA protects the leave itself; harassment claims arise under the laws above. If your employer denies a valid leave request, or punishes you for taking leave, that can be an FMLA claim in its own right. Our page on workplace retaliation explains how retaliation claims work more generally.
Under 29 U.S.C. 2617, you can enforce the FMLA in two ways. You can file a complaint with the Wage and Hour Division, or you can sue.
How harassment that continues after your leave, or that starts because of it, is treated depends on the facts and on the court. It may be an FMLA retaliation claim, a harassment claim under another law, or both. Courts are not uniform on when harassment tied to FMLA leave is actionable, so ask an employment attorney about your facts. Our comparison of retaliation vs hostile work environment sets out how the two claims differ.
What FMLA Does Not Do About the Harassment
The FMLA does not make harassment unlawful, and it gives you no claim for the hostile treatment itself. According to the Equal Employment Opportunity Commission (EEOC), hostile work environment claims arise under anti-discrimination laws. Those laws include Title VII, the Age Discrimination in Employment Act (ADEA), the ADA and the Genetic Information Nondiscrimination Act (GINA).
The table shows which law handles which part of your situation.
| Question | FMLA | Harassment Laws (Title VII, ADEA, ADA, GINA) |
|---|---|---|
| What does it cover? | Up to 12 workweeks of unpaid, job-protected leave for certain family and medical reasons | Hostile work environment claims |
| Who enforces it? | The Department of Labor's Wage and Hour Division, or a lawsuit | The EEOC |
| What is the filing deadline? | A lawsuit generally within two years of the violation, or three years if willful | An EEOC charge generally within 180 calendar days, extended to 300 days in many states |
| Does it cover harassment after leave? | Possibly, as retaliation; depends on the facts and the court | Possibly; depends on the facts and the court |
For more on which statutes apply to harassment, read our guide to hostile work environment laws.
Deadlines to Watch
Do not assume time spent on leave pauses the EEOC deadline for a harassment charge. According to the EEOC's page on time limits for filing a charge, a charge generally must be filed within 180 calendar days of the harassment. Many states extend that to 300 days.
Federal employees face a tighter clock. They must contact an Equal Employment Opportunity (EEO) counselor within 45 days.
An FMLA lawsuit generally must be filed within two years of the violation, or three years if the violation was willful. These deadlines run from specific dates. If you are unsure of your date, treat the earliest possible date as the deadline. Our guide to filing an EEOC complaint walks through that process.
If You Are Not FMLA-Eligible
State and some local laws provide their own medical or family leave, sometimes to smaller employers or with different rules. If your employer is too small, one of those laws may still give you leave. This page does not list state leave rules.
Harassment claims arise under separate anti-discrimination laws enforced by the EEOC, so FMLA eligibility is a separate question from your harassment claim. Our pages on workplace harassment and workplace bullying cover those questions.
Whatever law applies, these practical steps keep your records in order. They are not legal rules:
- Keep a dated record of each incident of harassment.
- Keep a dated record of every leave request you make and every response you get.
- Ask your employer for its FMLA forms in writing.
- Ask your treating provider to complete the medical certification.
- Keep copies of everything you send and receive.
If you were fired after a medical absence, our page on being fired for being sick covers that situation.
When to Bring in a Lawyer
An employment attorney can tell you whether your facts support an FMLA claim, a harassment claim, or both. Rules differ by state, employer size and the facts of each case.
Bring in a lawyer early if harassment continued after your leave, because courts are not uniform on those claims. Do the same if your EEOC deadline is close or you cannot pin down when it started. Bring your dated records, leave requests and medical certification to the first meeting.
Your next step on a hostile work environment FMLA question is to search our attorney directory for an employment lawyer in your state.
Frequently Asked Questions
Does FMLA protect me from a hostile work environment?
No. The FMLA is a medical and family leave law, and hostile work environment claims arise under anti-discrimination laws such as Title VII, the ADEA, the ADA and GINA, which the EEOC enforces. The FMLA can give eligible employees job-protected leave for a serious health condition, and it bars employers from interfering with that leave or retaliating for using it.
Can anxiety or depression from workplace harassment qualify for FMLA leave?
It can, if the condition meets the same requirements as any other serious health condition: inpatient care, or a period of incapacity with continuing treatment by a health care provider. A bad workplace alone does not qualify. You and your employer must also meet the FMLA eligibility rules, and your employer can require medical certification from a health care provider.
Can my employer retaliate against me for taking FMLA leave?
No. The FMLA makes it unlawful for an employer to interfere with, restrain or deny your FMLA rights, or to discriminate or retaliate against you for using them. You can file a complaint with the Department of Labor's Wage and Hour Division or sue, generally within two years of the violation, or three years if it was willful.
Does taking FMLA leave pause the deadline to file a harassment charge?
Do not assume it does. An EEOC charge generally must be filed within 180 calendar days of the harassment, extended to 300 days in many states, and federal employees must contact an EEO counselor within 45 days. If you are unsure of your start date, treat the earliest possible date as the deadline.
What if I am not eligible for FMLA?
State and some local laws provide their own medical or family leave, sometimes to smaller employers or with different rules. Harassment claims arise under separate anti-discrimination laws enforced by the EEOC, so FMLA eligibility is a separate question from your harassment claim. A licensed employment attorney in your state can tell you which leave law applies.
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