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Recent guidance from the U.S. Department of Labor (DOL) reiterates that the DOL will allow telemedicine visits (health care appointments held via video conference) to qualify as in-person appointments during the ongoing COVID-19 pandemic.

The Family and Medical Leave Act (FMLA) provides certain employees up to 12 workweeks of leave for, among other things, serious health conditions. To qualify for this, employees must establish they are under the “continuing treatment by a health care provider.”  Under federal regulation, this can only happen by physically visiting a health care provider in-person. The regulation was added in 2008 to make clear that phone calls, letters, emails, and text messages exchanged with a doctor are not “treatment.”

Responding to the COVID-19 pandemic, the DOL issued guidance in July 2020 that was confirmed and extended by a more recent DOL Wage and Hour Division Field Assistance Bulletin, which states that telemedicine, which “typically involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices” will be qualify an in-person visit, provided the visit meets three criteria: a health care providers performs an examination, evaluation, or treatment; it is permitted by state licensing authorities; and it should be performed via video conference.

If you have questions about how this development might affect your organization, please contact one of Johnson & Bell’s Employment Shareholders, Genevieve M. LeFevour or Christopher J. Carlos.