Labor Dept. Makes Telehealth a Permanent Option for FMLA Requests

Federal officials have permanently extended an emergency order giving employees the option to use telehealth to meet with doctors to qualify for taking time off under the Family and Medical Leave Act.

Employees can use telehealth to establish a serious health condition that would qualify them for taking time off from work under the Family and Medical Leave Act (FMLA).

The US Department of Labor’s Wage and Hour Division made that condition permanent in guidance issued last week. It comes six months after the department issued the emergency declaration to allow employees to use a connected health visit in place of an in-person visit with a doctor during the ongoing coronavirus pandemic.

The ruling gives employees better access to healthcare providers for the diagnosis and treatment of a health issue that puts them out of work.

“The guidance issued today reflects our ongoing commitment to provide the workforce critical information about flexibilities that allow employers and employees to better navigate the uncharted waters brought on by the coronavirus’ effects on the workplace,” Wage and Hour Division Administrator Cheryl Stanton said in a press release. “WHD is proving that maintaining social distance need not distance workers nor employers from their rights, and that expanding flexibilities is key to the workforce’s continued recovery and growth as we emerge from this pandemic, and beyond.”

Under the FMLA, an employee needs to meet with a doctor within seven days of incapacity to prove a serious health condition – defined as “an ‘illness, injury, impairment, or physical or mental condition that involves’ either: (1) ‘inpatient care’ such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care, or (2) ‘continuing treatment by a health care provider.’”

Those regulations were modified in 2008 to mandate an in-person visit, and to exclude doctor’s visits conducted by phone, letter, e-mail or text.

But with COVID-19 forcing the nation to reduce in-person visits in favor of virtual care, the WHD issued a ruling on July 20 that, until the end of 2020, it would “consider telemedicine visits to be in-person visits … for purposes of establishing a serious health condition under the FMLA.”

To qualify as a telemedicine visit, the agency added, the session would have to include an exam, evaluation or treatment by an FMLA-qualifying provider, would have to meet the conditions imposed by state licensing authorities, and would have to include audio-visual technology.

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