On December 29, 2020, the U.S. Department of Labor’s Wage and Hour Division (WHD) issued a Field Assistance Bulletin (Bulletin) providing guidance on the use of telemedicine to establish a serious health condition under the Family and Medical Leave Act (FMLA). The FMLA provides eligible employees of covered employers with up to 12 workweeks of unpaid, job-protected leave for specified family and medical reasons during a 12-month period. These specified family and medical reasons include a serious health condition that makes the employee unable to perform the essential functions of his or her job or to care for the employee’s spouse, son, daughter, or parent with a serious health condition. A serious health condition is an “illness, injury, impairment, or physical or mental condition that involves” either: (1) “inpatient care” such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care, or (2) “continuing treatment by a health care provider.” Under FMLA regulations, treatment must be “an in-person visit to a health care provider” and includes “examinations to determine if a serious health condition exists and evaluations of the condition.”
However, the Bulletin explains that, due to the COVID-19 pandemic, the WHD will consider a telemedicine visit to be an in-person for purposes of establishing a serious health condition under the FMLA provided that the telemedicine visit:
- includes an examination, evaluation, or treatment by a health care provider;
- is performed by video conference; and
- is permitted and accepted by state licensing authorities.
The Bulletin further explains that certain types of communication methods do not meet the above criteria in order to be considered an in-person visit, such as a telephone call, letter, email, or text message.
NOTE:
Field Assistance Bulletins are issued to provide Wage and Hour Division (WHD) field staff and investigators with guidance on enforcement positions, clarification of policies, and changes in policy so they can investigate, enforce, and administer the laws that the WHD is charged with enforcing. Nevertheless, the information in Field Assistance Bulletins can be instructive for employers because it indicates the WHD’s position on interpretations of the law.
