On December 29, 2020, the U.S. Department of Labor (“DOL”) issued two field assistance bulletins (“FABs”) aimed at clarifying obligations under the Family and Medical Leave Act (“FMLA”) in light of the prevalence of telework and telehealth.
The first FAB (No. 2020-07), Electronic posting for purposes of the FLSA, FMLA, Section 14(c) of the FLSA, EPPA, SCA, and DBA, explains the circumstances under which an employer can meet its FMLA posting obligations via electronic notice. Under 29 C.F.R. § 825.300(a), covered employers must “post and keep posted” a notice explaining the FMLA and providing information about the procedures for filing complaints of violations of the FMLA with the DOL. The notice must be posted “prominently” where it can be “readily seen” by employees and applicants. The existing FMLA regulations already allow employers to meet the posting obligation through electronic posting, as long as all other requirements are satisfied.
The FAB further clarifies that electronic posting is acceptable where all hiring and work is done remotely, and an employer posts the appropriate FMLA notice on an internal or external website that is accessible by all employees and applicants at all times. The FAB generally advises employers that they should take steps to inform employees of where and how to access the notice electronically. In addition, electronic posting may not be sufficient if the employer does not customarily post notices electronically, or if the user must request permission to view the file. For employers with workers split between on-site and remote work, the FAB suggests both hard-copy and electronic posting.
The second FAB (No. 2020-08), Telemedicine and Serious Health Conditions under the Family and Medical Leave Act (FMLA) outlines the circumstances under which telemedicine counts as an “in-person” visit under the FMLA. This definition is important, because an employee may be unable to establish that he or she has a “serious health condition” in the absence of an in-person visit with a medical provider. Specifically, the FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves inpatient care…or continuing treatment by a health care provider.” See 29 C.F.R. §§ 825.102, 113-115. The regulations further define “treatment by a health care provider” to mean “an in-person visit to a health care provider.” See 29 C.F.R. § 825.115(a)(3).
Due to the COVID-19 pandemic, many states have implemented measures to permit or expand telemedicine or telehealth. The federal government has also taken steps to ease restrictions and make it easier for providers to provide care via video conference or telephone.
In recognition of these changes, the DOL addressed telemedicine in July 2020 in its informal guidance, COVID-19 and the Family and Medical Leave Act Question and Answers. The guidance stated the DOL’s position that, until December 31, 2020, telemedicine visits could satisfy the in-person visit requirement if certain criteria were met.
As a continuation of this policy, the FAB states that a telemedicine visit may qualify as an “in-person visit” for purposes of the FMLA if the following criteria are met: (1) the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; (2) the telemedicine visit is permitted and accepted by state licensing authorities; and (3) generally, the telemedicine visit should be performed by video conference. Communications such as “a simple telephone call, letter, email, or text message” remain insufficient to satisfy the requirement of an “in-person visit.”
Unlike the informal guidance issued in July 2020, the FAB is indefinite and may remain in place beyond the pandemic.
