DOL Provides Guidance Regarding Telemedicine for Purposes of Establishing FMLA Entitlement

On December 29, 2020, the Department of Labor (DOL) issued guidance stating that a telemedicine visit with a health care provider to verify an employee’s serious health condition can be used to support FMLA leave.

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

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

The DOL had issued prior guidance in July 2020 stating that 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.

Hall Benefits Law has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 678-439-6236.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.
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