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 linger for a while longer).
One widespread change is the increased use of videoconferencing. In early 2020, a videoconference was a rarity, but now we Zoom in and out of classrooms, work meetings, and court appearances. Not surprisingly, the virtual world has reached the doctor’s office.


In an effort to respond to the COVID-19 pandemic and the changing practice of medicine, the U.S. Department of Labor extended its guidance considering telemedicine as in-person treatment under the Family and Medical Leave Act indefinitely.


While videoconferencing for medical treatment (aka telemedicine or telehealth) has been on the rise since the late 1990s, the COVID-19 pandemic spurred the medical community to promote the use of telehealth to treat patients without increased exposure to COVID-19.

In an effort to respond to the COVID-19 pandemic and the changing practice of medicine, the U.S. Department of Labor (DOL) extended its guidance considering telemedicine as in-person treatment under the Family and Medical Leave Act (FMLA) indefinitely (or at least until the DOL issues further guidance). 

Although the Biden administration has rolled back many of its predecessor’s guidance, this one seems likely to stay put.

BACKGROUND INFORMATION ON TELEHEALTH SERVICES

Telehealth services offer a safe and convenient option for medical and psychiatric treatment that reduces potential exposure to COVID-19 and the strain on healthcare systems.

While telehealth may not always be the best practice for treatment, the Center for Disease Control and Prevention (CDC) reports that telehealth services can be used to, among other things, screen patients, provide low-risk urgent care, access primary care providers and specialists, provide coaching and support, participate in physical and occupational therapy, monitor certain chronic medical conditions, engage patients who have difficulty accessing care, and provide follow up after hospitalization.

What qualifies as telehealth?

There are three categories of telehealth modalities:

(1) synchronous (our focus here);
(2) asynchronous; and
(3) remote patient monitoring. Id.

Synchronous telehealth is the real-time telephone or live audio-video interaction between a patient and health care provider. Id.

Asynchronous telehealth involves the collection of data at one point and time and involves a later interpretation. Id.

Finally, remote patient monitoring is the direct transmission of a patient’s clinical measurements to a health care provider. Id.

The DOL’s guidance regarding the FMLA and telehealth addresses when a telehealth visit counts as an in-person doctor’s visit to diagnose or treat a serious health condition.

In this sphere, the DOL counts only those video conferences involving face-to-face examination or treatment as in-person doctor’s visits. See id.

We will discuss more below, but mere real-time telephone interaction without more does not qualify as an in-person visit, or qualifying treatment, under the FMLA.

Thus, of the three types of telehealth modalities, synchronous videoconferencing is the only type that currently can provide the necessary basis for FMLA leave.

Republished with permission. The complete article for, "The Doctor Will See You Now: FMLA and Telehealth Visits," was published by Thomson Reuters Westlaw on February 23, 2021. The full article can be accessed here.

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