Telemedicine and the FMLA – The DOL Weighs In

Even before the pandemic, employers were questioning whether a telemedicine visit could constitute a visit with a health care provider for purposes of the Family and Medical Leave Act. In a Field Assistance Bulletin, No. 2020-8, the Wage and Hour Division of the U.S. Department of Labor offered guidance on this issue.

The FMLA applies to serious health conditions, which requires treatment by a health care provider. Such treatment has been defined to involve in-person visits with the provider. Earlier this year, the WHD issued frequently asked questions about the FMLA and the pandemic (as discussed in our July 20, 2020 E-lert), in which it stated that it would consider telemedicine visits to be in-person visits for purposes of the FMLA.

The WHD reiterates this position in the FAB, specifying that, in order to satisfy the in-person requirement, the telemedicine appointment: (1) must include an examination, evaluation, or treatment by a health care provider; (2) generally, should be performed by video conference; and (3) must be permitted and accepted by state licensing authorities. The WHD notes that communication methods that do not meet these criteria – such as simple phone calls, emails, letters, and text messages – will not be considered an in-person visit.

Of course, an employer is still entitled to have the health care provider complete the FMLA certification form, which explains that in-person visit requirement, but does not address telemedicine visits. Thus, employers may wish to make clear to their employees – and the health care providers – that telemedicine visits meeting the specified criteria are considered in-person visits, but phone calls or emails are not.