The Family and Medical Leave Act (FMLA) will continue to apply to some employees who seek treatment through telemedicine. Guidance from the U.S. Department of Labor in late December confirmed that its temporary policy will be extended for the foreseeable future.
FMLA offers eligible employees the opportunity to take up to 12 weeks of protected unpaid leave from work (and perhaps more) in certain situations. Two of the most common ways that these workers can receive FMLA leave is for their own serious health condition or caring for certain family members with serious health conditions of their own. Eligible individuals can demonstrate they have a serious health condition under the statute and its regulations by showing they have received subsequent treatment after a stint of inpatient care or they are receiving continuing treatment from a health-care provider.
Before the COVID-19 pandemic, the agency maintained a narrow interpretation of the term “treatment.” Last July, however, the agency temporarily loosened its standards. On July 20, it issued guidance noting that it would consider telemedicine visits to be in-person visits for purposes of establishing a serious health condition under the FMLA under certain circumstances. This temporary interpretation was slated to expire on December 30. However, the agency extended the interpretation that telemedicine when three specific criteria are met:
- * The remote examination, evaluation or treatment must be conducted by a health-care provider;
- * It must be permitted and accepted by state licensing authorities; and
- * It generally should be performed by video conference.
The Labor Department noted that telemedicine has grown increasingly widespread over the last 20 years, climbing from 7,000 such visits for rural Medicare recipients in 2004 to nearly 108,000 in 2013, an increase of almost 1,500 percent. As a result, the agency may consider loosening the telemedicine requirement permanently this year.
The Fisher-Phillips law firm recommends that employers take these steps in response:
- * Train managers on this new change if they previously were unaware of it.
- * Check whether any state family leave laws may have followed the lead of the Department of Labor and instituted their own telemedicine rules that may require adjusting policies and practices.
- * If unsure whether the state licensing authorities permit telemedicine, check with a lawyer or contact the state directly.
- * Work with counsel to ensure compliance with new electronic notice revisions.