In response to the COVID-19 pandemic, the U.S. Department of Labor (DOL) made it easier for employees to comply with the treatment requirements of the Family and Medical Leave Act (FMLA). In a July 2020 FAQ, the DOL adopted a policy that that it would temporarily consider a telemedicine visit with a health care provider as an in-person visit under the FMLA regulations. The policy was set to expire on December 31, 2020.
DOL will Consider Telemedicine an “in-person” Visit
Recognizing that telemedicine has contributed to reduced COVID infections and expanded healthcare availability to remotely located patients, the DOL has announced that telemedicine visits will be deemed compliant beyond December 31, 2020. In its December 29, 2020 Field Assistance Bulletin, the DOL explained the growing use of telemedicine and telehealth visits and its benefits during the pandemic:
“As the U.S. Centers for Disease Control and Prevention (CDC) has documented, treatment by telemedicine has grown increasingly widespread over the last twenty years. The CDC reports that, among rural Medicare recipients, the number of telemedicine visits increased from just over 7,000 in 2004 to nearly 108,000 in 2013. 2 More recently, in response to COVID-19, the use of telemedicine has accelerated even more rapidly. Providers are using telemedicine to facilitate the availability of healthcare while increasing social distancing and reducing potential infectious disease exposures and community spread.”
Requirements
In order for virtual visits to qualify as an in-person visit, the following criteria must be met:
- The examination, evaluation, or treatment is provided by a health care provider;
- The telemedicine visit is generally permitted and accepted by state licensing authorities; and
- The telemedicine visit is performed by video conference.
Communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.
Conclusion
The DOL’s permanent greenlighting of telemedicine is an important development for individuals seeking FMLA leave. It helps individuals obtain medical care without unnecessarily exposing themselves to COVID-19 by in-person visits to their treating physician.
As always, please let me know if I can help.
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
