DOL Gets with the Times and Updates FMLA Eligibility Requirements

Department of Labor (DOL) has issued guidance stating a telemedicine visit with a health care provider to verify an employee’s serious health condition can be used to support FMLA leave.

Under FMLA, one avenue for an employee to prove a serious health condition is to visit a health care provider in person. Under 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.”

However, since the COVID-19 pandemic began, many health care providers have implemented telemedicine visits to substitute for in-person visits. DOL’s latest guidance makes it clear a telemedicine visit may be considered an in-person visit for purposes of the FMLA if the visit is:

• An exam, evaluation, or treatment by a health care provider;
• Permitted and accepted by state licensing authorities; and
• Performed via videoconference.

It is also important to note the videoconference requirement.

DOL has stated that other communication methods – phone call, letter, email, or text message – are insufficient, by themselves, to satisfy the regulatory requirement of an in-person visit.

DOL had issued prior guidance in July 2020 stating it would consider telemedicine visits to be in-person visits for the purpose of FMLA leave until December 31, 2020. The latest guidance extends this permanently.