Telemedicine acceptable for FMLA

Posted July 30, 2020

It was a sunny Saturday when Emma Employee sprained her ankle when she tripped over her dog while rushing to pick up her phone. She thought about going to the local urgent care clinic but didn’t want to interact with any more people than absolutely necessary, given the continuing spread of the pandemic. Her usual health care clinic had recently began offering online care, so she thought she’d begin there.

Emma’s doctor told her to stay off her foot for a week or two and keep her foot elevated. He also told her to contact them for another session in about a week to see how she was doing. On Monday, she contacted Sean, her supervisor to let him know that she needed a week or so off. Luckily, Sean recognized Emma’s request and referred Emma to the HR department.

Hanna, the HR Department of One, was pretty savvy in the FMLA. She remembered that it required that treatment employees received had to be in person; none of this video stuff would cut it. But she also remembered a conversation she had with a colleague whose company was subject to the Families First Coronavirus Response Act (FFCRA) — her company was not. The colleague mentioned something about telehealth visits being acceptable, even for the FMLA, at least while the FFCRA was effective. She gave that colleague a quick call.

Sure enough, Emma learned, due to safety and health concerns related to COVID-19, many health care providers were treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. This involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices.

Because of this, until December 31, 2020, the U.S. Department of Labor will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition 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 performed by video conference; and be permitted and accepted by state licensing authorities.

Providing telemedicine may complicate FMLA administration a bit but serves the public’s interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.

So, before you stamp an FMLA request “denied” because an employee or family member received telemedical treatment, consider this new wrinkle. This type of situation still needs involve a serious health condition, which often requires treatment. The concept of “treatment” is now expanded.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.