Among the many changes COVID-19 has brought about is the increases use of telemedicine for persons in need of medical services. On December 29, 2020, the United States Department of Labor embraced the use of telemedicine as a method by which an employee can obtain “treatment” for “serious medical condition” under the Family and Medical Leave Act (“FMLA”).
The FMLA permits an employee to take up to 12 weeks of leave for their own or a family member’s medical condition that requires either inpatient care or “continuing treatment by a health care provider.” In its interpretive regulations, the DOL states that “[t]reatment by a health care provider means an in-person visit to a health care provider.” 29 CFR §825.113(c).
In its new guidance, DOL acknowledged that the use of telemedicine has increased dramatically since the passage of the FMLA, and has accelerated since the start of the COVID-19 pandemic. Consequently, DOL has stated that it will consider a telemedicine visit with a health care provider to be an “in-person” visit under the FMLA when it includes:
- An examination by a health care provider;
- Is accepted by state licensing authorities, and
- Generally, is performed via videoconference.
In contrast, telephone calls, emails, and text messages are deemed insufficient, by themselves, to meet the regulatory requirement of an in person visit under the FMLA.
Like the EEOC’s recent guidance on COVID-related medical examinations, the DOL’s new directive is another example of how the COVID pandemic has forced agencies that regulate the workplace to revise rules to reflect the rapidly changing landscape of the world in which we work.