On December 29, 2020, the U.S. Department of Labor (“DOL”) issued a Field Assistance Bulletin addressing Telemedicine and Serious Health Conditions under the Family and Medical Leave Act (“FMLA”). The guidance reflects an evolving workplace landscape in response to the COVID-19 pandemic and the need to promote social distancing while also ensuring the availability of healthcare for employees.

As you may be aware, an employee may take FMLA leave due to the employee’s own serious health condition or to care for a spouse, son, daughter, or parent with a serious health condition. The guidance provides that due to the fact that health care providers are now often using telemedicine to deliver examinations, evaluations, and other healthcare services that would previously have been provided only in an office setting, the DOL will consider a telemedicine visit with a health care provider as an in-person visit 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 permitted and accepted by state licensing authorities; and,
• generally, should be performed by video conference.

Communication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.

Employers should review their FMLA policies to determine whether definitions of qualifying visits need to be modified.