The United States Department of Labor (DOL) recently issued two Field Assistance Bulletins in response to the COVID-19 pandemic. The first Bulletin provides guidance on when employers can satisfy certain federal workplace poster obligations electronically. The second Bulletin describes when a telemedicine visit may count as an in-person visit to establish a serious health condition under the federal Family and Medical Leave Act (FMLA).
Electronic Workplace Posters
In Field Assistance Bulletin 2020-7, the DOL addresses electronic posting of required workplace notices under the Fair Labor Standards Act (FLSA), the FMLA, the Employee Polygraph Protection Act (EPPA), Section 14(c) of the FLSA (regarding the employment of certain workers with disabilities at special minimum wage rates) and the Service Contract Act (SCA) (which applies to certain federal contractors and subcontractors). The Bulletin was issued in response to questions from employers regarding their obligations to employees who work remotely during the pandemic.
The Bulletin sets forth the following general principles (more information about each statute’s specific requirements can be found in the Bulletin):
- If the law requires a notice to be continuously posted at a worksite (FLSA, FMLA and EPPA), the Bulletin provides that “in most cases” electronic posting is an acceptable substitute for the continuous posting requirement only if: (1) all of the employer’s employees exclusively work remotely; (2) all employees customarily receive information from the employer via electronic means; and (3) all employees have readily available access to the electronic posting at all times.
- Both the FMLA and the EPPA also require that the notices be readily seen by applicants for employment. In addition to the standards noted in the first bullet, electronic posting is permissible under these statutes only if all hiring is done remotely and all applicants for employment customarily receive information from the employer electronically and have readily available access to the electronic posting at all times.
- Where the law permits delivery of notices to individual employees as an alternative to posting (FLSA Section 14(c) and the SCA), the notice requirements may be met via email or other electronic delivery method only if the employee customarily receives information from the employer electronically.
Where electronic posting is permitted, employers must take steps to inform the affected individuals of where and how to access the notices electronically. Moreover, if the affected individuals cannot easily determine which electronic posting is applicable to them and their worksite, the posting will be considered insufficient.
The DOL encourages both hard-copy posting and electronic posting for employers with some employees working on-site and other employees teleworking full-time.
Telemedicine and Serious Health Conditions under the FMLA
Under the FMLA, a “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either: (1) inpatient care; or (2) continuing treatment by a health care provider (29 CFR §825.113(a)). FMLA regulations define “treatment” to include “examinations to determine if a serious health condition exists and evaluations of the condition” (29 CFR §825.113(c)) and require that such treatment by a health care provider be “in-person” (29 CFR §825.115(a)(3)).
In response to the COVID-19 pandemic, the DOL issued a series of FMLA FAQs last year. Question 12 provides that, until December 31, 2020, in order for a telemedicine visit to be considered an in-person visit for the purpose of establishing a serious health condition, the telemedicine visit must: (1) include an examination, evaluation, or treatment by a health care provider; (2) be performed by video conference; and (3) be permitted and accepted by state licensing authorities.
Field Assistance Bulletin 2020-8 extends this policy into 2021 and is nearly identical to the earlier guidance, differing only with respect to the second criterion: The Field Assistance Bulletin states that the telemedicine visit “generally, should be performed by video conference.” The Bulletin seems to contemplate that forms of telemedicine other than video conference might count as an in-person visit but does not provide any examples. The Bulletin does, however, provide examples of what would not count as an in-person visit: “[c]ommunication 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.”
Employers should ensure that their family and medical leave policies are consistent with this new guidance.