New Department of Labor Guidance Clarifies Lingering Coronavirus Leave and Telemedicine Issues

On December 29, the Department of Labor (“DOL”) published two new Field Assistance Bulletins (“FABS”) addressing issues related to the ongoing COVID-19 pandemic.  FAB 2020-7 addresses electronic notice postings requirements under federal labor laws.  FAB 2020-8 in turn clarifies how telemedicine visits may qualify for FMLA leave.  These new guidelines are discussed in detail below. 

FAB 2020-7 – Electronic Posting Requirements

FAB 2020-7 addresses when electronic posting by employers through email or an internet or intranet website satisfies employer’s posting requirements under federal labor laws, most notably the Fair Labor Standards Act (“FLSA”) and Family and Medical Leave Act (“FMLA”).  The FLSA requires employers to continuously post a notice explaining the FLSA in conspicuous places in every establishment where employees are employed.  FMLA regulations similarly require employers continuously post a general notice in a conspicuous location in the workplace explaining the FMLA’s provisions and providing information on the procedures for submitting complaints of FMLA violations with the DOL. 

FAB 2020-7 clarifies that employers may electronically post these notices but only if:

  • All the employer’s employees exclusively work remotely;
  • All employees customarily receive information from the employer via electronic means; and
  • All employees have readily available access to the electronic posting at all times.

If these three conditions are present, then the DOL will allow electronic FLSA and FMLA notices to be electronically posted on employee information internal or external websites, or shared network drive or file system accessible to employees at all time.

Hard-copy posting is still required for employers who have employees working both on-site and remotely.  This DOL guidance clarifies, however, that an employer may supplement a hard copy posting requirement with electronic posting, while encouraging these employers to consider both methods of posting.  

FAB 2020-8 – Telemedicine under the FMLA

FAB 2020-8 clarifies that telemedicine visits with health care providers may be used to support FMLA leave.  Prior to the onset of the COVID-19 pandemic, the DOL’s regulations provided that “[t]reatment by a health care provider means an in-person visit to a health care provider.”  Earlier this year, however, the DOL issued guidance that it would consider telemedicine visits to be in-person visits for purposes of the FMLA due to the ongoing COVID-19 crisis.  FOB 2020-8 extends this concept perpetually, citing both the ongoing trend towards telemedicine over the last 20 years and challenges posed by COVID-19 as justification for the policy. 

FAB 2020-8 provides that in order to be considered an “in-person” visit, the telemedicine visits must:

  • Include an examination, evaluation, or treatment by a health care provider;
  • Be permitted and accepted by state licensing authorities; and
  • Be performed by video conference.

The DOL further noted that communication methods that do not satisfy these requirements include a simple telephone call, letter, email, or text message.  These telemedicine visits must include a video aspect to qualify as “in person” under the FMLA. 

For additional information on this or any related topic, please contact any of the KDDK labor and employment law professionals.

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