Use of Telehealth to Support FMLA Leave Extended into 2021

Continuing the policy adopted in response to the COVID-19 pandemic, the Department of Labor's (DOL's) Wage and Hour Division will, for the foreseeable future, allow employees to use telemedicine visits with a doctor to establish a serious health condition that renders them eligible for protected time off under the Family and Medical Leave Act (FMLA), provided specified criteria are met.

In companion guidance, the DOL provided leeway for employers to electronically post required notices of employees' statutory rights under a variety of federal labor laws, including the FMLA (see box, below).

'In-Person' Video Chats

"Under the FMLA, one way for an employee to prove they have a serious health condition is to attend an in-person visit with a health care provider within seven days of the first day of incapacity," blogged Jeff Nowak, an attorney in the Chicago office of Littler. As an alternative to visiting a doctor's office or hospital, "DOL made clear that video conferencing would be critical to meeting FMLA's requirements, noting that 'communication methods that do not meet these criteria (e.g., a simple telephone call, letter, e-mail, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an 'in-person' visit."

Under Field Assistance Bulletin (FAB) 2020-8, issued Dec. 29, 2020, to be considered "in-person," the telemedicine visit must:

• Include an examination, evaluation or treatment by a health care provider.
  

• Be permitted and accepted by state licensing authorities.
  

• Generally, be performed by videoconference.
  

Employers should "review your internal policies and practices with respect to FMLA leave," advised Megan Winter, a partner in the San Diego office of law firm Fisher Phillips. "Train your managers on this new change if they were previously unaware. Check whether any state family leave laws in your state may have followed the lead of the Department of Labor and instituted their own telemedicine rules that may require you to adjust your policies and practices."

Relief Was Set to Expire

On July 20, 2020, as part of its response to the COVID-19 public health emergency, the DOL issued FAQ #12, which stated, in part, "Until Dec. 31, 2020, the [Wage and Hour Division] will consider telemedicine visits to be in-person visits ... 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."

FAB 2020-8 "extends this concept permanently," Nowak said.

The guidance seeks to "allow employers and employees to better navigate the uncharted waters brought on by the coronavirus' effects on the workplace," said Wage and Hour Division Administrator Cheryl Stanton. It aims to provide "an opportunity to leverage the power of electronic communication while preserving the rights of all parties."

Additional Relief Sought

Tracy Watts, U.S. health policy leader at HR consultancy Mercer, would like to see other temporary relief, including flexibility regarding telehealth visits and the use of health savings accounts (HSAs), made permanent. The Coronavirus Aid, Relief and Economic Security (CARES) Act, for instance, allows HSA-eligible high-deductible health plans to cover telehealth services on a pre-deductible basis. That provision, however, is set to expire at the end of 2021.

"Telemedicine's time has finally come, and there is no going back," Watts said. "Thoughtful policy decisions made at this critical time can have an enormous impact on the positive role telemedicine can and should play in the future of the health care ecosystem."

The Society for Human Resource Management (SHRM) advocated for the inclusion of the provision in the CARES Act to change the rules to allow employer-sponsored high-deductible plans coupled with an HSA to cover telehealth services during the pandemic. "We will continue to urge Congress to extend and or make this change permanent," said Chatrane Birbal, vice president for public policy at SHRM.

Related SHRM Articles:

Coronavirus Relief Package Includes Key Workplace Provisions, SHRM Online, December 2020

Fiscal 2021 Omnibus and COVID-19 Relief, SHRM Government Affairs, December 2020

Related SHRM Resource:

FMLA: Telehealth Visits Support Leave, SHRM Express Requests

Employment Law Posters: FAQs and More, SHRM Express Requests