The Family and Medical Leave Act (FMLA) provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 workweeks of leave in a 12-month period for, a serious health condition that makes the employee unable to perform the essential functions of his or her job, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition.
Under the FMLA a “serious health condition” is an “illness, injury, impairment, or physical or mental condition that involves” either: (1) “inpatient care” such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care, or (2) “continuing treatment by a health care provider.” The regulations also required that “treatment by a health care provider means an in-person visit to a health care provider.” The U.S. Department of Labor’s Wage and Hour Division (WHD) added this provision in 2008 to clarify that treatment meant an “examination, evaluation, or specific treatment, and does not include, for example, a phone call, letter, email, or text message.”
On July 20, 2020, the WHD issued informal guidance in FAQ #12, which stated, “Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits…, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities.”
On December 29, 2020, the WHD issued a field assistance bulletin (“FAB”) aimed at clarifying obligations under FMLA in light of the increased frequency of telework and telehealth. WHD’s experience was that health care providers are continuing to use telemedicine to deliver examinations, evaluations, and other healthcare services that would previously have been provided only in an office setting. As a result, WHD has extended its guidance that it will consider a telemedicine visit with a health care provider as an in-person visit under 29 C.F.R. §825.115 provided it meets the three criteria discussed above. The FAB also made clear that “a simple telephone call, letter, email, or text message” remains “insufficient, by themselves” to satisfy the in-person requirement.
Unlike the informal guidance issued in July 2020, the FAB is indefinite and may remain in place beyond the pandemic. Keeping all of that in mind, employers evaluating FMLA certification documents must, at least for the duration of the ongoing pandemic, consider telemedicine appointments to be “treatment” for purposes of the FMLA provided the three criteria above are satisfied.