DOL Considers Telemedicine an In-Person Visit

Recent guidance from the Department of Labor considers telemedicine an “in-person” visit for the purposes of establishing a serious health condition under the Family and Medical Leave Act (FMLA).

A new DOL Field Assistance Bulletin, announced on December 29, 2020, acknowledges the increasingly widespread use of telemedicine to deliver examinations, evaluations, and other health care services that would previously have been provided only in an office setting. As a result, the DOL Wage and Hour Division has expanded the definition of in-person visits to include telemedicine visits.

Qualifying for FML

One way for an employee to establish a serious health condition under the FMLA is to be examined, evaluated, or treated in-person by a health care provider. 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.

The guidance further clarifies that 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.

Certification Requirements Unchanged

The requirement for employees to provide complete and sufficient medical certification to validate the need for FML remains the same. To help facilitate completion of the form by a telemedicine provider, an employer should consider providing employees with electronic certification forms. Model medical certification forms available in the HR Library (member login required) or on the DOL website can be used for this purpose.