DOL expands ability to use telemedicine visits for FMLA purposes

The COVID-19 pandemic continues to change the legal landscape, this time with the U.S. Department of Labor (DOL) extending its earlier position that, under certain circumstances, a telemedicine consultation will constitute an "in-person" visit for Family and Medical Leave Act (FMLA) purposes.

Telehealth and the FMLA

Under the FMLA, eligible employees may take up to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that makes them unable to perform their essential job functions.

To be eligible for FMLA leave, employees must seek "treatment," which the relevant regulations define to include "examinations to determine if a serious health condition exists and evaluations of the condition."

An 'apple' a day keeps the doctor away

The FMLA regulations define "treatment" to mean "an in-person visit to a healthcare provider." In 2008, the DOL added language clarifying that a "treatment" for FMLA purposes "does not include, for example, a phone call, letter, e-mail, or text message."

Of course, the definition may have made sense in a pre-COVID-19 world where physical visits to the doctor's office were easily undertaken. In July 2020, however, the DOL's Wage and Hour Division (WHD) published an FAQ that noted: