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Some Telemedicine Can Still Count as In-Person Visits Under FMLA in 2021

January 05, 2021

The U.S. Department of Labor (DOL) released a new Field Assistance Bulletin (FAB) to address an issue arising under the Family and Medical Leave Act (FMLA) in the midst of the continuing COVID-19 pandemic and the shift to telework.

The FMLA provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons, including a “serious medical condition,” the definition of which can include treatment by a health care provider. The DOL regulations provide that “[t]reatment by a health care provider means an in-person visit to a health care provider.” In July 2020, in response to the COVID-19 pandemic and the increased need for social distancing, the DOL announced that a telemedicine visit by videoconference would be considered an in-person visit for purposes of the FMLA through Dec. 31, 2020.

In the new FAB, the DOL announced this standard will continue into 2021. The department noted that health care providers are now often using telemedicine to deliver examinations, evaluations, and other health care services that would previously have been provided only in an office setting. Given this experience, and continuing the policy adopted in response to the COVID-19 pandemic, the DOL's Wage and Hour Division will consider a telemedicine visit with a health care provider as an in-person visit provided specified criteria are met.

To be considered an in-person visit, the telemedicine visit must:

  • Include an examination, evaluation or treatment by a health care provider
  • Be permitted and accepted by state licensing authorities
  • Generally be performed by videoconference

According to the DOL, 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.

Please contact Mark Fijman or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.