FMLA and Telemedicine

by Melanie Daly, Esq., SPHR

Benefits,  COVID-19,  Family and Medical Leave Act,  Hot Topics

The COVID era has turned traditional doctor’s visits upside down, and the increase in telemedicine has also impacted how a serious health condition is determined under the Family and Medical Leave Act (FMLA). Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. The FMLA regulations state that to determine whether a serious health condition exists, an individual must be under the continuing treatment by a healthcare provider. Moreover, the term “treatment” includes examinations to determine if a serious health condition exists and evaluations of the condition.

Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?  According to a recent Guidance issued by the Wage and Hour Division of the Department of Labor (WHD), the answer is “yes.” Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits and will consider electronic signatures to be signatures, 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. This approach serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.  Contact Employers Council with questions.

About the author
Melanie Daly, Esq., SPHR

Melanie Daly is a staff attorney in the Employment Law Services department at Employers Council. She worked as an attorney for Employers Council from 1994 to 1998 and later became a business owner, human resources manager, and then Chair of the State Personnel Board for five years. Melanie rejoined Employers Council as a workplace investigator in 2016, returning to a staff attorney role in 2018. Melanie assists members with employment law issues and represents them before state and federal agencies. Melanie received her bachelor’s degree from the University of Wyoming and her law degree from the University of Denver Sturm College of Law. She holds the SPHR certification and is licensed to practice law in Colorado.