Wednesday, July 22, 2020

Coronavirus Update 7-22-2020: Telemedicine and the FMLA

Earlier this week, the Department of Labor published a three new sets of FAQs—COVID-19 and the FLSACOVID-19 and the FMLA, and updated FAQs on the FFCRA.

By and large the FAQs don't break new ground. But one of the FMLA questions caught my attention.

12. Due to safety and health concerns related to COVID-19, many health care providers are treating patients for a variety of conditions, including those unrelated to COVID-19, via telemedicine. Telemedicine involves face-to-face examinations or treatment of patients by remote video conference via computers or mobile devices. Under these circumstances, will a telemedicine visit count as an in-person visit to establish a serious health condition under the FMLA?

Typically, for a non-inpatient medical issue to qualify as a "serious health condition" under the FMLA, one must receive either in-person treatment by a health care provider two or more times within 30 days of the first day of incapacity, or in-person treatment by a health care provider on at least one occasion that results in a regimen of continuing treatment under their supervision.

Does a telemedicine visit count as one of these "in-person" visits? According to the DOL, the answer is "yes" (at least for the rest of 2020).

Yes. Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be signatures, for purposes of establishing a serious health condition under the FMLA. To be considered an in-person visit, the telemedicine visit must include an examination, evaluation, or treatment by a health care provider; be performed by video conference; and be permitted and accepted by state licensing authorities. This approach serves the public's interest because health care facilities and clinicians around the nation are under advisories to prioritize urgent and emergency visits and procedures and to preserve staff personal protective equipment and patient-care supplies.

Telemedicine has served a crucial role during this pandemic to ensure that individuals receive the medical care that they need without needlessly exposing themselves to COVID-19 by visiting a health care provider in person. I'm thrilled to see that the DOL is adapting by counting certain telehealth visits as "in-person" visits for purposes of the FMLA.