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USDOL Gets Tech-Savvy in Approving Electronic Notice Posting and FMLA-Qualifying Telemedicine Visits

By Tracey Truesdale - Franczek P.C.

January 4, 2021

The U.S. Department of Labor’s (DOL) Wage and Hour Division was hard at work in the closing days of 2020, endorsing the use of electronic posting of required notices and telemedicine visits under the Family and Medical Leave Act. The new DOL bulletins recognize the challenges posed by COVID-19 and employers’ increased reliance on technology in remote work environments.

Electronic Notice Posting Permitted

With the rise of remote work during the COVID-19 pandemic, many employers have opted to use email or company web platforms to provide required notices of employee statutory rights. In most cases, this practice, while practical and designed to provide employees with actual notice of their rights, did not have specific endorsement by the DOL. In a Field Assistance Bulletin issued December 29, 2020, the DOL confirmed that electronic notice will satisfy the notice requirements under the following federal laws:

> Fair Labor Standards Act (FLSA)
> Family and Medical Leave Act (FMLA)
> Employee Polygraph Protection Act (EPPA)
> Service Contract Act (SCA)

The DOL advises that when an employer chooses to use electronic means to satisfy workplace posting requirements, such as on an intranet site, internet website, or shared network, the electronic notice must be as effective as a hard copy posting. The DOL will not consider electronic posting on a website or intranet to be effective if the employer does not customarily post notices to employees electronically. Additionally, employees must know where and how to access the required postings electronically, or the DOL will not consider the employer to have complied with the posting requirement.

Relying exclusively on electronic posting is permissible only where the entire workforce works remotely. Where some employees work onsite, physical posting is still required. For the FMLA and EPPA which require that notices be viewable by applicants, electronic-only posting is permissible only if the hiring process itself is conducted electronically and applicants have ready access to the required posting.

Employers should note that the DOL electronic posting guidance applies only to the statutes specified above. It does not authorize electronic posting under employment statutes enforced by other federal agencies such as the EEOC or state law.

Telemedicine Visits Satisfy FMLA’s Requirement of “In-Person” Visit to a Health Care Provider”

In a second Field Assistance Bulletin issued on December 29, the DOL clarified that a telemedicine visit with a health care provider can qualify as an “in-person visit” with a health care provider to satisfy the requirement that an employee be receiving continuing treatment. This guidance expands upon FAQ’s issued by the DOL in July, 2020 in response to COVID-19 which stated that telemedicine visits would be considered in-person visits until December 31, 2020.

Under the FMLA, a “serious health condition” is a medical condition that involves either: (1) “inpatient care” such as an overnight stay in a hospital, or (2) “continuing treatment by a health care provider.” Under FMLA regulations, continuing treatment by a health care provider “means an in-person visit to a health care provider” that involves examination, evaluation, or specific treatment. It does not include a phone call, letter, email, or text message.

Accordingly, to be considered an “in-person” visit, the telemedicine visit must include:

> An examination, evaluation, or treatment by a health care provider;
> Be permitted and accepted by state licensing authorities; and
> Generally should be performed by video conference.

The DOL guidance reiterates that “[c]ommunication methods that do not meet these criteria (e.g., a simple telephone call, letter, email, or text message) are insufficient, by themselves, to satisfy the regulatory requirement of an ‘in-person’ visit”.

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