The Department of Labor is quickly catching up to the telemedicine explosion and America’s remote workplace.

In an effort to ease FMLA administration and address the lightning-fast move toward telemedicine visits during the COVID-19 pandemic, the DOL issued guidance yesterday making clear that a telemedicine visit with a health care provider can be used to support FMLA leave.

As you may recall under the FMLA, one way for an employee to prove they have a serious health condition is to attend an in-person visit with a health care provider within seven days of the first day of incapacity. However, the COVID-19 pandemic has put the clamp on the ability to attend in-person visits with a physician, as medical offices across the country turned to telemedicine early on in the pandemic.

In yesterday’s guidance, the DOL cemented a position it actually announced earlier this year — that is, for purposes of establishing a serious health condition under the FMLA, a telemedicine visit is considered an in-person visit for purposes of FMLA leave so long as the visit is:

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

This guidance may seem familiar to you, as the DOL issued an FAQ earlier this spring greenlighting telemedicine visits under the FMLA through December 31, 2020.  Yesterday’s guidance now extends this concept permanently. In this latest guidance, however, DOL made clear that video conferencing would be critical to meeting FMLA’s requirements, noting that “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.”

FMLA Postings Also Can Be Electronic

The DOL didn’t stop with telemedicine visits. As many American workers are working remotely, DOL also was wise to address an employer’s posting requirements in an increasingly remote workplace.

The FMLA regulations require covered employers to post in conspicuous places on their premises a general notice explaining the FMLA’s provisions and providing information concerning the procedures for filing complaints of violations of the FMLA with the DOL.

In additional guidance also issued yesterday, the DOL confirmed that electronic posting of the general notice will 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. In doing so, employers must ensure they’ve informed employees about how they can access the electronic notice.

Where employers have employees working on-site and remotely, which would include the far majority of employers, the DOL notes that the employer may supplement a hard-copy posting requirement with electronic posting, but that the hard-copy posting still is required.  In these situations, the DOL encourages both methods of posting.

Virtual high fives all around!