2020 has been such a year. COVID has permeated so many aspects of our lives. One of those has been the explosion of telemedicine. On December 29, 2020, the Department of Labor issued guidance as to the use of telemedicine under the traditional FMLA.

Two of the categories for which an employee may take leave under the FMLA are (1) the employee’s own serious health condition (SHC) which renders them unable to perform the essential functions of their job and (2) to care for the employee’s parent, spouse, or child who has a SHC.

One of the many definitions of a SHC involves “continuing treatment” by a health care provider. It requires a period of incapacity of more than 3 consecutive, calendar days (and any subsequent period relating to the same condition), that involves:

(1) Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.

(3) The requirement in paragraphs (1) and (2) of this section for treatment by a health care provider means an in-person visit to a health care provider. The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.

(4) Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.

Paragraph (3) discusses an in-person visit. The new guidance states that the DOL will consider telemedicine an in-person visit if the telemedicine visit:

• Includes an examination, evaluation, or treatment by a health care provider
• Is permitted and accepted by state licensing authorities; and
• Generally, is performed by video conference.

The DOL notes that telephone calls, letters, emails, or text messages will not be sufficient.

COVID continues to push the bounds of our technological capabilities and our former understandings.

By Kristen L. Brightmire, kbrightmire@dsda.com