In what seems like an ongoing spate of agency guidance, the United Stated Department of Labor’s Wage and Hour Division has joined the fray by issuing guidance today (Dec. 30, 2020) regarding utilizing telemedicine as a means of establishing a serious health condition for FMLA purposes.

As a way of background, the FMLA provides eligible employees with up to 12 weeks of unpaid, job-protected leave in a 12-month period for certain family and medical reasons. One qualifying reason under the FMLA is when an employee is unable complete his essential job functions because of a serious health condition, or the employee has to care for an immediate family member with a serious health condition.

The FMLA defines a “serious health condition” as an illness injury, or physical or mental condition that involves inpatient care or continuing treatment by a healthcare provider. “Treatment by a healthcare provider” generally means an in-person visit to a healthcare provider.

As a result of COVID-19, the use of telemedicine has accelerated rapidly. Providers have turned to telemedicine to replace traditional office visits. The guidance recognizes that, in most cases, telemedicine, while remote, generally involves a face-to-face examination or treatment. Accordingly, the Wage and Hour Division will consider telemedicine an “in-person visit” for FMLA purposes so long as the telemedicine visit includes:

  • an examination, evaluation, or treatment by a health care provider;
  • an examination be permitted and accepted by state licensing authorities; and,
  • generally, the examination should be performed by video conference.

The guidance further provides that single telephone calls, letters, emails or text messages—on their own—will not be sufficient to satisfy the “in-person visit” requirement.

Employers should be aware of this and ensure they, or their third-party vendors, are implementing this most recent guidance into their screening procedures in response to FMLA requests.

About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.

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