As a result of the COVID-19 pandemic, on December 29, 2020, the United States Department of Labor (DOL) announced that it will consider a telemedicine visit with a health care provider as an in-person visit when establishing a serious health condition under the Family and Medical Leave Act (FMLA).

Generally, the FMLA grants eligible employees with up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons in a 12-month period. In part, an employee may take leave for the employee’s own serious health condition or to care for the serious health condition of an employee’s spouse, child, or parent.

“Serious health condition” is defined by the FMLA as “illness, injury, impairment, or physical or mental condition that involves” either: (1) “inpatient care,” such as an overnight stay in a hospital, including any period of incapacity or any subsequent treatment in connection with such inpatient care, or (2) “continuing treatment by a health care provider.” “Treatment” includes “examinations to determine if a serious health condition exists and evaluations of the condition.” The regulations further define treatment as an “in-person visit” to a health care provider.

Expanding on its July 20, 2020 guidance, the DOL announced that it will consider telemedicine visits to be in-person visits if certain criteria are met. 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, be performed by video conference.

In a separate release issued on December 29, 2020, the DOL announced that it will permit electronic posting of the FMLA general notice where all hiring and work is done remotely. The FMLA requires a covered employer to post a general notice about the FMLA in a conspicuous place on its premises. The DOL will now consider electronic posting to satisfy the requirement if the appropriate notice is posted on an internal or external website that is accessible to all applicants and employees. However, if employers have any employees working on-site, it must also post a hard copy of the notice.