On December 29, 2020, the Department of Labor (DOL) issued two guidance bulletins addressing compliance with the Family and Medical Leave Act (FMLA). The first made clear that telemedicine visits will permanently be allowed as an FMLA-approved visit if certain conditions are met. The second permits employers to provide FMLA-required postings electronically to employees when the work is being performed remotely.
As you know, a qualifying reason for FMLA leave is an employee’s own “serious health condition” that renders him unable to perform the essential functions of his job. Additionally, an employee may use FMLA leave to care for the employee’s spouse, son, daughter, or parent with a “serious health condition.” Under the FMLA, a serious health condition is an illness, injury, impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a healthcare provider.
The DOL’s regulations provide that treatment by a healthcare provider means an in-person visit to a healthcare provider. The DOL further clarified that a phone call, email, or text message from a healthcare provider did not constitute treatment under the FMLA. In its recent guidance, the DOL acknowledged that healthcare providers are often using telemedicine to deliver examinations, evaluations, and other healthcare services that would previously only have been in person. This has been especially true since the beginning of the COVID-19 pandemic.
The DOL announced that it will permanently consider a telemedicine visit as an in-person visit in compliance with the FMLA if specific criteria are met. The telemedicine visit must:
- Include an examination, an evaluation, or treatment by a healthcare provider
- Be permitted and accepted by state licensing authorities
- Generally, be performed by videoconference
A telephone call, letter, email, or text message still will not qualify under the FMLA as treatment by a healthcare provider.
The FMLA requires each employer covered by the FMLA to post and keep posted, in conspicuous places on the premises where employees are employed, a general notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA. The notice must be posted prominently where it can be readily seen by employees and applicants for employment.
In its recent guidance, the DOL announced it will consider electronic posting to satisfy the FMLA posting requirements where all hiring and work is done remotely and an employer posts the appropriate FMLA notice on an internal or external website that is accessible to all employees and applicants. The employer must inform employees of where and how to access the notice electronically.
Where an employer has some employees on-site and other employees teleworking full time, the employer should still meet the hard-copy posting requirement but may supplement a hard-copy posting with an electronic posting.
 The DOL issued a FAQ document earlier this year allowing telemedicine visits under the FMLA through December 31, 2020.