DOL Issues New Q&As

In July, the DOL issued a couple of new Questions and Answers regarding the FMLA. One of them addresses the issue of whether a remote or telemedicine visit with a health care provider can qualify as an “in-patient” visit. As a rule, in order for a condition that does not require in-patient care to qualify as a serious health condition one must receive in-person treatment by a health care provider.

29 CFR Section 825.115(a)(3) provides:

(3) The requirement in paragraphs (a)(1) and (2) of this section (which require ‘treatment by a health care provider’) for treatment by a health care provider means an in-person visit to a health care provider.

Since the regulations clearly require an in-person visit, my initial thought was that the answer to this question would be “No.” Well, I was wrong. Q & A number 12 states:

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?

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.

So, until at least December 31, 2020, remote or telemedicine visits that meet the requirements above will qualify as in-person visits under the FMLA. All HR professionals who manage the application of their company’s FMLA program (and lawyers who think they know a thing or two about the FMLA), should make note of this change since it is going to expand the number of situations in which an employee will be eligible for FMLA leave.

Don’t Inadvertently Create COBRA Liability

As the COVID-19 crises continues, I am receiving more and more calls to assist businesses in downsizing, either through layoffs or significant reduction in hours.

There are so many moving parts in that process that it can be easy to lose sight of your obligations under COBRA, and that can lead to expensive mistakes.

Both the Department of Labor and Internal Revenue Service have the authority to impose civil penalties if employers fail to provide compliant COBRA notices. The DOL can impose civil penalties up to $110 per day per person and the IRS can impose an excise tax of $100 a day per beneficiary and $200 a day per family, until employees receive an adequate notice.

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DOL Issues New Optional FMLA Forms

Last week the DOL announced that it was issuing new optional FMLA forms. You can find the announcement, and the forms, here. https://www.dol.gov/agencies/whd/fmla/forms

The new forms contain some subtle differences and, as I said, they are optional.

As always, keep in mind that you cannot require an employee who has already provided you with certification documentation to fill out the new forms nor can you even require an employee to use any certain forms. Per the DOL: “An employer must accept a complete and sufficient certification, regardless of the format. The employer cannot reject a certification that contains all the information needed to determine if the leave is FMLA-qualifying.”