Do Telemedicine Visits Count Under the FMLA?

Earlier this week, the U.S. Department of Labor (“DOL”) issued newly-revised FAQs on the Families First Coronavirus Response Act (“FFCRA”), COVID-19 and the Fair Labor Standards Act (“FLSA”), and COVID-19 and the Family and Medical Leave Act (“FMLA”).  Although all of the FAQs are worth reviewing, there is an interesting FMLA-related question that we wanted to highlight for employers and HR professionals.

Under the FMLA, a “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider.  Continuing treatment includes continuing treatment by a health care provider that results in an incapacity (e.g., inability to work, attend school, or participate in other daily activities) of more than three (3) consecutive calendar days with either two (2) or more in-person visits to the health care provider within thirty (30) days of the date of incapacity or one (1) in-person visit to the health care provider with a regimen of continuing treatment (e.g., prescription mediation, physical therapy, etc.).  In light of the COVID-19 pandemic, the question has arisen whether a telemedicine visit counts as an in-person visit to establish a serious health condition for FMLA purposes.

In its FAQs, the DOL stated that, until December 31, 2020, it 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.

This issue represents yet another way that the COVID-19 pandemic and technological advances have affected the rapidly-changing area of labor and employment law. For questions about this or any other labor and employment topic, please don’t hesitate to contact the attorneys at Hoffman & Hlavac.  To continue to stay updated on the key labor and employment law developments that affect your workplace, subscribe to our blog and follow us on social media.