Before the COVID-19 pandemic, the agency maintained a narrow interpretation of the term "treatment." Last July, however, the agency temporarily loosened its standards. On July 20, it issued guidance noting that it would consider telemedicine visits to be in-person visits for purposes of establishing a serious health condition under the FMLA under certain circumstances. This temporary interpretation was slated to expire on December 30. However, the agency extended the interpretation that telemedicine when three specific criteria are met:

• The remote examination, evaluation or treatment must be conducted by a health-care provider;
• It must be permitted and accepted by state licensing authorities; and
• It generally should be performed by video conference.

The Labor Department noted that telemedicine has grown increasingly widespread over the last 20 years, climbing from 7,000 such visits for rural Medicare recipients in 2004 to nearly 108,000 in 2013, an increase of almost 1,500 percent. As a result, the agency may consider loosening the telemedicine requirement permanently this year.

The Fisher-Phillips law firm recommends that employers take these steps in response:

• Train managers on this new change if they previously were unaware of it.
• Check whether any state family leave laws may have followed the lead of the Department of Labor and instituted their own telemedicine rules that may require adjusting policies and practices.
• If unsure whether the state licensing authorities permit telemedicine, check with a lawyer or contact the state directly.
• Work with counsel to ensure compliance with new electronic notice revisions.

Read more: 

• The rise of telemedicine in workers' comp
• IRS proposes allowing use of HRAs to pay for direct primary care
• Beyond routine care: Telemedicine provides access to chronic disease management