Under the FMLA, eligible employees may take FMLA leave for incapacity from work due to their own serious health condition, or to care for the employee’s parent, spouse or child with serious health condition. A “serious health condition” involves either (a) inpatient care (and any resultant recovery period or subsequent treatment), or (b) continuing medical treatment by a health care provider. Since 2009, the FMLA regulations have required that in order to count as medical “treatment” for purposes of determining whether an eligible employee or covered family member has a serious health condition, the treatment must involve an “in-person visit to a health care provider.” As the DOL explained when it issued the revised regulations that took effect in 2009, the requirement of an “in-person” visit excludes, “for example, a phone call, letter, email, or text message.”
In response to the COVID-19 public emergency, the U.S. Department of Labor (DOL) published guidance entitled “COVID-19 and the Family and Medical Leave Act Questions and Answers.” https://www.dol.gov/agencies/whd/fmla/pandemic. On July 20, 2020, the DOL issued FAQ #12 as part of that guidance, which sanctioned the substitution of telemedicine visits for in-person medical office visits so long as three criteria were met. This was set to expire on December 31, 2020. Fortunately, in a Field Assistance Bulletin (FAB) issued on December 29, 2020, the DOL indefinitely extended the telemedicine concept contained in FAQ #12. FAB No. 2020-8 adopted the following rule: 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.
The word “generally” is emphasized above because it does not appear in FAQ #12. The DOL does not explain the addition of the use of “generally” in FAB No. 2020-8. But, it is reasonable to conclude that the insertion was intentional and may leave open the possibility that the DOL would consider a telephone call to be acceptable as a means of meeting the third criterion. That conclusion is bolstered by another explanatory comment the DOL made in FAB No. 2020-8:
Communication 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.
The adjective “simple” in relation to a “telephone call” does not appear in the explanatory language that accompanied the 2009 regulations. Accordingly, perhaps the DOL is signifying that a more probing telephone call (e.g., one that involves a medical “evaluation”) may suffice to meet the standard. Such a conclusion makes practical sense: An in-person medical visit may last only a matter of minutes, even if it entails an “examination” of a patient with a chronic condition, for example. On the other hand, a telephonic consultation may last a half hour or longer and involve an in-depth psychological or other type of medical “evaluation” of the patient, despite the absence of a video conference. Obviously, the length of time that a medical “visit” lasts cannot be the determining factor, and so it seems equally obvious that the qualifying words (“generally” and “simple”) contained in FAB No. 2020-8 are in need of clarification by the DOL.
While FAB No. 2020-8 does not have the same legal imprimatur as an official regulatory rule, the DOL is currently in the process of reviewing public comments it received in response to a Request for Information it issued in August 2020. Based on the normal regulatory process, the DOL likely will issue revised regulations sometime in 2021. Perhaps the DOL will clarify the “telemedicine” standard when it issues the revised regulations. The full text of FAB No. 2020-8 can be viewed here:
Scott D. Macdonald, Esq., SPHR, SHRM-SCP