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
healthcare 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 video conference
would be considered an in-person visit for purposes of the FMLA, through
December 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 healthcare 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, WHD 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; and,
· generally, should 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.
