Many of us hear the term depression and reflexively raise our eyebrows in speculation and doubt. We tend to believe that it is an overly used medical term, a so-called free pass for those of us who cannot deal with the responsibilities and demands of life. Unfortunately, for those affected by it, depression is a very real and common mental health condition that significantly affects the annual bottom line profits of many businesses. In fact, depression affects approximately 17 million adults in the United States, and 70% of those people are currently in the work force. Estimates of costs to business as a result of depression range from $43 billion to $70 billion dollars annually, as depression impacts the bottom line through lost productivity, absenteeism, disability and inappropriate use of healthcare.

One option for employees to consider when diagnosed with depression is to request a leave of absence pursuant to the Family and Medical Leave Act (FMLA). Under limited circumstances, the FMLA provides certain employees with up to 12 weeks of unpaid, job-protected leave during a 12-month period. Employees are eligible to take FMLA leave only if they have worked for their current employer for at least 12 months and have worked for at least 1,250 hours of the previous 12 months. The FMLA has limited applicability as it applies only to public agencies, including state, local and federal employees, and private-sector employers who group 50 or more employees within a 75 mile radius.

Under the FMLA, an employer is required to give an employee the same or equal position at the same pay and benefits level enjoyed by the employee before the leave was taken. An employee cannot lose any of the accrued benefits such as personal or sick leave that he or she had saved up before going on leave. If the employee has group health insurance through his or her employer the employer must continue to cover the employee while on leave. Lastly, the employer is not allowed to discriminate or retaliate against the employee in any way for taking leave.

The FMLA is enforced by the Wage and Hour Division of the U.S. Department of Labor’s Employment Standards Administration (the “Department”). This agency investigates complaints of alleged violations by employers. An eligible employee may also bring a private civil action against an employer. However, the FMLA does not provide a golden ticket to unlimited riches for successful litigants, as damages are limited in scope, e.g., neither punitive nor emotional distress damages are allowed. That said, an employee may recover back pay, actual monetary losses sustained as a direct result of a violation and attorney’s fees. While not the pay day some might hope for, the FMLA is certainly a viable option for employees to consider when facing health concerns brought on by depression.