DOL Extends Ability to Use Telemedicine Visits for FMLA Purposes

The COVID-19 pandemic continues to change the legal landscape, this time with the Department of Labor extending its prior position that, under certain circumstances, a telemedicine visit will constitute an “in-person” visit for the purpose of the FMLA.

Telehealth and the FMLA

Under the Family Medical Leave Act, eligible employees may take up to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that makes the employee unable to perform the essential functions of his or her job. In order to be eligible for FMLA leave, employees must seek “treatment,” which the relevant FMLA regulations define to include “examinations to determine if a serious health condition exists and evaluations of the condition.”

An “Apple” a Day Keeps the Doctor Away

The FMLA regulations define “treatment” to mean “an in-person visit to a health care provider,” and in 2008 the DOL added language clarifying that a “treatment” for FMLA purposes “does not include, for example, a phone call, letter, email, or text message.”

Of course, this definition may have made sense in a pre-COVID world where physical visits to the doctor’s office were easily undertaken, however, in July 2020 the DOL’s Wage and Hour Division published an FAQ which noted:

“Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits . . .  for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.”

In a Field Assistance Bulletin issued on December 29, 2020, the DOL extended this interpretation indefinitely, noting that a telemedicine visit will be considered “in-person” if the visit includes the following elements:

  1. An examination, evaluation, or treatment by a health care provider;
  2. Is permitted and accepted by state licensing authorities; and
  3. Is performed by a video conference – although the Department notes that this is only “generally” the standard, potentially leaving the window open for other types of visits being acceptable as well (perhaps visiting the ER using VR).

The Bulletin goes on to note that “Communication methods that do not meet [the above] criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an ‘in-person’ visit.”

Bottom Line

In light of this new guidance, employers should continue to accept FMLA applications supported by telehealth visits, assuming that the three factors identified above are present. Given the fact that telehealth visits are likely to continue even after the pandemic subsides, it is likely that employers will continue to see telehealth “treatments” on an increased basis moving forward.