The U.S. Department of Labor (DOL) has issued guidance clarifying that telemedicine examinations or treatment, which have become increasingly widespread by necessity during the COVID-19 pandemic, may be used by employees as the equivalent of an “in-person visit to a health care provider” for the purpose of establishing a “serious health condition” under the Family and Medical Leave Act (FMLA).

FMLA-eligible employees are entitled to unpaid, job-protected leave when a “serious health condition” causes the employee to be unable to perform an essential function of his or her job, or the employee must care for a family member with a “serious health condition,” an FMLA term of art that means an injury, illness, impairment, or condition that requires inpatient medical treatment or other continuing treatment by a health care provider.

“Treatment by a health care provider” includes “examinations to determine if a serious health condition exists and for evaluations of the condition.” However, prior DOL regulations had limited “treatment by a health care provider” to in-person examinations, evaluations, or specific treatment.

With its new guidance, the DOL acknowledged that its definitional limitations no longer reflected the reality of how many employees are receiving medical care these days, especially during the COVID-19 public health crisis. Medical providers are increasingly resorting to “telemedicine to facilitate the availability of healthcare while increasing social distancing and reducing potential infectious disease exposure and community spread.”

So, the DOL will now accept a telemedicine visit as the equivalent of an in-person visit to a medical provider, if the telemedicine “visit” consists of:

• an examination, evaluation, or treatment by a healthcare provider;
• being permitted and accepted by state licensing authorities; and
• generally, must be performed by video conferencing.

However, not all means of communicating remotely with a health care provider are sufficient, according to the DOL, to satisfy the FMLA’s requirement of an “in person” visit. Simple telephone calls, letters, emails, and text messages for example, are not enough, even under the new relaxed definitional requirements.

If you have questions on this new guidance or need any assistance, please contact Doug Taylor at (703) 525-4000 or rdougtaylor@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.