woman speaking to Dr via telemedicine

On December 29, 2020, the U.S. Department of Labor (DOL) published a Field Assistance Bulletin solidifying its position that telemedicine visits qualify as “in-person visits” for the purpose of establishing a serious health condition under the Family and Medical Leave Act (FMLA).

Under the FMLA, one way to establish the existence of a serious health condition is to obtain certification that the patient has attended an “in-person” visit with a health care provider within seven days of the first day of incapacity. At least one additional in-person treatment visit may be required if the patient is not subject to a regimen of continuing treatment (unless the absence otherwise qualifies for FMLA protection, e.g., is related to pregnancy incapacity, a chronic condition, etc.).

In July 2020, the DOL updated its COVID-related Q&As to clarify that until December 31, 2020, a telemedicine visit would be considered an in-person treatment visit under certain circumstances. Its new Field Assistance Bulletin was published just shy of the expiration of the DOL’s informal guidance, and makes clear that, on a permanent basis, a telemedicine visit is considered an in-person visit so long as the visit is:

    • an examination, evaluation, or treatment by a health care provider;
    • permitted and accepted by state licensing authorities; and,
    • performed by video conference.

The Field Assistance Bulletin emphasizes that telephone calls without video, text messages, and emails are insufficient to meet this standard.

What Employers Should Do

Employers that administer FMLA leave should ensure human resources personnel and/or managers responsible for approving and denying leave requests are aware of the continuation of the DOL’s policy stance.  However, please remember that state family and medical leave laws may have their own “in-person” visit requirements. Don’t assume telemedicine visits are sufficient for state leave eligibility, especially for employees who may be seeking paid leave benefits under a state-administered disability or family and medical leave program.

What ReedGroup Is Doing

ReedGroup continues to work with clients to maximize flexibility in connection with leave-related medical documentation while remaining compliant with all applicable laws. ReedGroup’s operations team is up-to-date on the continuation of the DOL’s telemedicine stance and will ensure the appropriate standards are applied when evaluating leave-related certifications and medical documentation.

If you’re looking for assistance managing claims or to ensure compliance across your organization, ReedGroup has solutions for you. Check out our offerings here.

 

Information provided on this blog is intended for general educational use. It is not intended to provide legal advice. ReedGroup does not provide legal services. Consult an attorney for legal advice on this or any other topic.