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Given the huge uptick in telemedicine as a result of the COVID-19 pandemic, the Department of Labor (DOL) issued guidance (Field Assistance Bulletin No. 2020-8) that makes it clear to employers that an employee's telehealth visit to a provider can be used to support the employee's need for FMLA leave.
The guidance comes on six months after the DOL's Wage and Hour Division's (WHD) first addressed the issue in its updated FAQs in June 2020 (specifically FAQ #12), wherein it provided that "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, evaluations, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities."
Before the DOL issued the FAQs, one way an employer could qualify a "serious medical condition" under the FMLA was to visit a healthcare provider within seven days of the employee's first day of inability/incapacity to work. The pandemic, however, put a pin in many in-person visits, necessitating a workable (i.e., remote) solution for patients and providers alike, which in turn led to an extension of the in-person requirement to allow for telemedicine and a spike in telehealth visits.
The DOL's new guidance makes the June temporary acknowledgment of telehealth visits as FMLA-qualifying permanent.
Turning to the elements for a qualifying telehealth visit, to be FMLA-qualifying, the DOL's guidance clarified that the visit must include all the following:
- An exam, evaluation, or treatment by an FMLA-qualifying healthcare provider;
- Pass muster and be accepted by the respective state licensing authorities; and
- Be by video conference (so not just audio, telephone call, text message, etc.).
In line with the FMLA's notice requirement for employers, the DOL also made clear that in the new age of remote work, an employer could fulfill its FMLA notice obligation by posting on its internal or external website, although employers must ensure that each employee has been told how they can access the policy.
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