The Doctor Will See You Now via Telemedicine and It May Qualify as Treatment under the FMLA

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Bradley Arant Boult Cummings LLP

As you already know, COVID-19 changed almost everything, and some of those things are likely here to stay (or at least for a while longer). One widespread change is the use of videoconferencing, including in the medical field. An increase in the use of videoconferences to treat patients (aka telemedicine or telehealth) and efforts to respond to the COVID-19 pandemic led the U.S. Department of Labor (DOL’s recent guidance can be found here) to extend the consideration of telemedicine as in-person treatment indefinitely (or at least until the DOL issues further guidance).

What Does This Mean?

When evaluating FMLA certification documents, employers must keep in mind that a telemedicine visit may qualify as a healthcare provider visit to support FMLA leave. Eligible employees who work for covered employers are entitled for leave to, among other things, care for family members with serious health conditions or for their own serious health conditions. Caring for family members or one’s self includes seeking “continuing medical treatment by a health care provider.” Under FMLA regulations, treatment is defined as an “in-person visit to a health care provider.”  With the recent guidance, videoconferences now qualify as an in-person visit so long as the videoconference:

  1. Includes an examination, evaluation, or treatment by a healthcare provider;
  2. Is permitted by state licensing authorities; and
  3. Is performed by videoconference (phone calls, letters, emails, or text messages alone won’t cut it).

Accordingly, an eligible employee who tells you that the doctor’s visit was via videoconference should be granted FMLA leave (so long as the above-mentioned criteria is met).  But, keep in mind that telephone calls without video, letters, emails, and text messages alone are not considered treatment under the FMLA. When evaluating certification documents, keep this change in mind and, as always, contact your employment counsel with any questions.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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