Background
On December 29, 2020, the US Department of Labor (DOL) published Field Assistance Bulletin 2020-8 to provide enforcement guidance regarding the use of telemedicine in establishing a serious health condition under the Family and Medical Leave Act (FMLA) to align with COVID-19 guidance. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices.
Summary
FMLA Eligibility
FMLA job protections are available to eligible employees who need to take time off work due to their own serious health condition or the serious health condition of a spouse, child, or parent.
A serious health condition must involve either inpatient care or continuing treatment by a health care provider. “Treatment” includes in-person medical examinations and evaluations by a health care provider and excludes phone calls, letters, emails, or text messages.
However, as part of its response to the COVID-19 public emergency, the DOL issued, in July 2020, FAQ #12, allowing for telemedicine to be considered as in-person visits under the FMLA if certain criteria are met.
Telemedicine as In-person Visit
The DOL will consider a telemedicine visit with a health care provider as an in-person visit if this visit:
- Includes an examination, evaluation, or treatment by a health care provider;
- Is permitted and accepted by state licensing authorities; and
- Is generally performed by video conference.
Communication methods that do not meet these criteria (such as a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.
Employers Next Steps
- Employers should educate their staff on this new guidance and update their policies and practices.
- If you are a Full-Service or Virtual HR client and have questions regarding this e-Alert or would like assistance in updating your policies, please email us.
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This content is provided with the understanding that HR Knowledge is not rendering legal advice. While every effort is made to provide current information, the law changes regularly and laws may vary depending on the state or municipality. The material is made available for informational purposes only and is not a substitute for legal advice or your professional judgment. You should review applicable laws in your jurisdiction and consult experienced counsel for legal advice. If you have any questions regarding this content, please contact HR Knowledge at 508.339.1300 or email us.
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