DOL Provides Employers & Employees Additional Flexibility During Pandemic

05 January 2021 Blog
Authors: Leonard V. Feigel
Published To: Labor & Employment Law Perspectives Coronavirus Resource Center:Back to Business Health Care Law Today

On December 29, 2020, the U.S. Department of Labor (DOL), Wage and Hour Division, published a pair of guidance memos (specifically referred to as Field Assistance Bulletins) that give employers added flexibility to remain in compliance during the COVID-19 pandemic.

The first guidance memo (hereafter “Telemedicine Memo”) addresses the use of telemedicine visits to prove that an employee’s time off is covered under the Family and Medical Leave Act (FMLA).  By way of review, the FMLA provides eligible employees with unpaid, job-protected leave for specified family and medical reasons, including when the employee or their family members suffer from a “serious health condition” as defined by the act.  Per the FMLA regulations enacted in 2008, an in-person visit to a health care provider - i.e., an office visit - is one method for a worker to prove they or a family member suffers from a serious health condition.  Telemedicine visits obviously are not office visits, so there was concern as to whether such visits could be used for FMLA purposes.  This became especially germane during the COVID-19 pandemic as in-office visits with health care providers became less available and, in many cases, were replaced by telemedicine encounters.

The Telemedicine Memo makes it clear that a telemedicine visit qualifies as an in-person visit under FMLA guidelines if all three of the following conditions are met: 1) the visit includes an examination, evaluation, or treatment by a health care provider, 2) the visit is permitted and accepted by state licensing authorities, and 3) the visit generally should be performed by videoconference.  The Telemedicine Memo also makes clear that simple telephone calls, letters, emails and text messages are insufficient communication methods, by themselves, to satisfy the requirement of an “in-person” visit.

The second guidance memo (hereafter “Notices Memo”) outlines conditions under which  businesses can substitute electronic notices for hard-copy postings summarizing employee workplace rights.  Again, by way of review, employers are obligated under several federal laws and regulations enforced by the DOL, such as the FMLA and the Fair Labor Standards Act, to “post and keep posted” notices at worksites, such as on a bulletin board in a break area, that describe employees’ rights regarding minimum wages, overtime pay, and leaves of absence, among other items.  Accordingly, employers do not satisfy their notice obligations through a direct mailing or other single notice to employees. 

The Notices Memo provides that “in most cases” a business will satisfy its posting requirement via an electronic notice, such as by email or on an intranet site, internet website, or shared network drive or file system posting, if (and only if): “(1) all of the employer’s employees exclusively work remotely, (2) all employees customarily receive information from the employer via electronic means, and (3) all employees have readily available access to the electronic posting at all times.”  The Notices Memo also encouraged employers to supplement electronic notices with a hard-copy posting at the workplace when it has workers working both on-site and remotely.  Lastly, employers also must ensure they’ve informed workers about how to access the electronic notices.

As the COVID-19 pandemic is an ever-evolving situation, employers should continue to regularly monitor federal guidance on operating during the pandemic.  For more information or questions, please contact your relationship attorney or the author listed below. Foley is here to help our clients effectively address the short- and long-term impacts on their business interests, operations, and objectives. Foley provides insights and strategies across multiple industries and disciplines to provide timely perspective on the wide range of legal and business challenges that companies face conducting business while dealing with the impact of the coronavirus. Click here to stay up to date and ahead of the curve with our key publications addressing today’s challenges and tomorrow’s opportunities. To receive this content directly in your inbox, click here and submit the form.

 

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Authors

Related Services