FMLA in the COVID-19 Era: Telemedicine and Workplace Postings

On December 29, 2020, the Department of Labor (DOL) issued two guidance documents addressing: (1) telemedicine visits as qualifying treatment visits under the Family and Medical Leave Act (FMLA), and (2) satisfaction of FMLA workplace posting requirements through electronic notifications. The new requirements reflect the evolving workplace landscape, support social distancing and infection control efforts, and facilitate the availability of health care.

Telemedicine Visits May Be Considered “In-Person” Visits Under the FMLA

In its Field Assistance Bulletin, the DOL expanded the definition of “treatment” under the FMLA to include certain telemedicine visits. An employee may take FMLA leave due to the employee’s own serious health condition or to care for a spouse, son, daughter, or parent with a serious health condition. One of the avenues to demonstrate a serious health condition is to show continuing treatment by a health care provider (HCP), which is defined as an “in-person” visit to an HCP. In recognition of the burgeoning use of telemedicine during the pandemic, the DOL issued a FAQ in July 2020 that guided employers on when telemedicine visits would be considered as a qualifying in-person visit under the FMLA. That FAQ expired on December 31, 2020. However, the DOL, in its latest guidance, has incorporated telemedicine visits, with certain conditions, into its definition of in-person visits, apparently as a permanent “interpretation” of its regulations.

The DOL will consider a telemedicine visit with an HCP as an “in-person” visit under 29 C.F.R. § 825.115, provided the following criteria are met. The telemedicine visit must:

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

Communication methods that do not meet these criteria—such as a telephone call, letter, email, or text message—continue to be insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.

Employers should evaluate existing FMLA policies and review the need to redefine or clarify definitions of qualifying visits which may support a finding of a serious health condition and FMLA leave. Although the DOL issued updated FMLA certification forms in June 2020, the forms continue to refer only to “in-person” visits. Employers, therefore, also may want to consider adding qualifying telemedicine visits to the forms.

Electronic Posting May Meet FMLA Notification Requirements

Covered employers are required by the FMLA to conspicuously post notices that provide employees and applicants with information about the FMLA’s provisions and procedures for filing complaints of FMLA violations. In its second Field Assistance Bulletin, the DOL declared that electronic posting will satisfy the FMLA posting requirements in situations where all hiring and work is done remotely.

In these circumstances, an employer should post appropriate FMLA notices on an intranet and/or external website that is accessible to all employees and potential applicants. The employer must put employees on notice of where and how to access the notices electronically. In hybrid situations where an employer has some employees on-site and other employees telecommuting full time, the DOL still requires employers to meet the hard copy posting requirement, but encourages supplementing this with an electronic posting. This new guidance, which also discusses electronic posting to meet requirements under various other employment laws including the Fair Labor Standards Act and the Service Contract Act, likely anticipates that the shift to remote work may be here to stay, at least in some degree, even after the pandemic ends.

Attorneys in Ballard Spahr’s Labor and Employment Group regularly advise employers on federal compliance issues, including DOL guidance and the FMLA.

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