Wednesday January 13th 2021
On December 29, 2020, the US Department of Labor (“DOL”) released two field aid bulletins (“FABs”) clarifying the obligations of the Family and Medical Leave Act (“FMLA”) in light of the proliferation of teleworking and teleworking should telehealth.
The first FAB (# 2020-07), Electronic Posting for the Purposes of the FLSA, FMLA, Section 14 (c) of the FLSA, EPPA, SCA, and DBA, explains the circumstances under which an employer can fulfill its FMLA posting obligations by electronic means Message. Pursuant to 29 CFR § 825.300 (a), insured employers are required to “post and update” a notice explaining the FMLA and providing information on the procedures for filing complaints of FMLA violations with the DOL. The notice must be “clearly visible” so that it can be “clearly seen” by employees and applicants. The existing FMLA regulations already enable employers to fulfill the posting obligation through electronic posting, provided all other requirements are met.
The FAB also clarifies that electronic posting is acceptable when all hiring and work is done remotely and an employer publishes the relevant FMLA notice on an internal or external website that all employees and applicants can access at any time. The FAB generally advises employers to take steps to inform workers of where and how to electronically access the notice. In addition, electronic publication may not be sufficient if the employer does not normally publish notices electronically or if the user needs to request permission to view the file. For employers with employees split between on-site and remote work, the FAB suggests both printed and electronic posting.
The second FAB (No. 2020-08), Telemedicine and Serious Health Conditions under the Family and Sick Leave Act (FMLA), describes the circumstances under which telemedicine is considered a “personal” visit under the FMLA. This definition is important because an employee may not be able to demonstrate that he or she is in “serious health” without a personal visit to a medical provider. In particular, the FMLA defines “Severe Health Condition” as “illness, injury, impairment, or physical or mental condition that includes inpatient care … or continued treatment by a healthcare provider”. See 29 CFR §§ 825.102, 113-115. In the regulations, “treatment by a health care provider” is further defined than “personal visit to a health care provider”. See 29 CFR § 825.115 (a) (3).
Due to the COVID-19 pandemic, many states have taken measures to permit or expand telemedicine or telemedicine. The federal government has also taken steps to ease restrictions and make it easier for providers to provide coverage via video conference or telephone.
In recognition of these changes, in July 2020 the DOL addressed telemedicine in its informal guidelines COVID-19 and the questions and answers on the law on family and sick leave. The guidelines set out the position of the DOL that telemedicine visits could meet the requirement of a face-to-face visit by December 31, 2020 if certain criteria were met.
As a continuation of this guideline, the FAB states that a telemedicine visit can be regarded as a “personal visit” within the meaning of the FMLA if the following criteria are met: (1) The telemedicine visit requires an examination, assessment or treatment by a health care provider; (2) Visiting telemedicine is permitted and accepted by the state licensing authorities. and (3) in general, the telemedicine visit should be conducted via videoconference. Messages such as “a simple phone call, letter, email or text message” are still insufficient to meet the requirements of a “personal visit”.
In contrast to the informal guidelines issued in July 2020, the FAB is perpetual and can persist beyond the pandemic.
Jackson Lewis PC © 2020National Law Review, Volume XI, Number 13
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