By Janet A. Hendrick
Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.
Recognizing ongoing changes the COVID-19 pandemic has brought to the way we work and receive medical treatment, the Wage and Hour Division of the United States Department of Labor issued employer guidance on December 29, 2020 on two issues: electronic posting of required employment law notices and when a televisit with a health care provider counts as an in-person visit under the Family and Medical Leave Act. DOL’s guidance comes in the form of Field Assistance Bulletins, which provide guidance to the Wage and Hour Division field staff.
Field Assistance Bulletin No. 2020-7: Electronic Statutory Postings
DOL published this guidance in response to “questions from employers regarding the use of email or postings on an internet or intranet website, including shared network drive or file system, to provide employees with required notices of their statutory rights.” The bulletin provides guidance as to when these forms of electronic notice satisfy the notice requirements of the Fair Labor Standards Act, the Family and Medical Leave Act, the Employee Polygraph Protection Act, and the Service Contract Act. DOL’s general view is that electronic postings should supplement, but not replace, physical postings in most cases.
First, if a statute requires the posting of a notice “at all times,” DOL will only consider electronic posting an acceptable substitute where (1) all employees work exclusively remotely, (2) all employees ordinarily receive information from the employer electronically, and (3) all employees have access to the electronic posting at all times. For employers that have both remote and on-site employees, the employer may supplement physical postings with electronic postings and in fact the DOL “would encourage both methods of posting.”
Second, if a statute, such as the Service Contract Act, permits employers to meet notice requirements by delivery of individual notices to each employee, an employer satisfies this requirement by emailing notices, but only if the employee customarily receives information from the employer electronically. Otherwise, the employer must send a physical notice to satisfy the notice requirement.
Third, any electronic notice must be as effective as a physical, hard-copy posting to meet statutory requirements. This means employees must be able to readily see a copy of the posting, which DOL says will “depend on the facts.” At a minimum, DOL requires that the employees are capable of accessing the posting without having to request permission to view a file or access a computer. DOL will not consider an employer to have complied with a posting requirement if:
- The employer does not customarily post employee notices electronically;
- The employer has not taken steps to inform employees where and how to access the notice electronically;
- The employer posts the notice on an unknown or little-known electronic location, which DOL equates to “hiding the notice, similar to posting a hard-copy notice in an inconspicuous place, such as a custodial closet or little-visited basement”; or
- The employees cannot easily determine which electronic posting applies to them and their worksite.
Following the general guidance, the bulletin provides further guidance specific to each relevant statute, with examples of when DOL will consider electronic postings compliant with the relevant statutory requirement.
Field Assistance Bulletin No. 2020-8: Telemedicine and Serious Health Conditions under the FMLA
DOL’s Wage and Hour Division issued a frequently asked question (FAQ #12) in response to the COVID-19 pandemic that states “Until December 31, 2020, the WHD will consider telemedicine visits to be in-person visits . . ., 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.” Bulletin 2020-8 provides guidance to DOL staff regarding telemedicine visits past December 31, 2020.
As a reminder, under the FMLA, eligible employees may take leave for their own or a family member’s “serious health condition.” A “serious health condition” requires either inpatient (overnight) care or “continuing treatment,” which in turn includes “examinations to determine if a serious health condition exists and evaluations of the condition.” FMLA regulations provide that “treatment by a health care provider means an in-person visit to a health care provider,” and does not include a phone call, letter, email, or text message.”
Noting the rapid acceleration of telemedicine during the COVID-19 pandemic, and the Wage and Hour Division’s “experience . . . that health care providers are now often using telemedicine to deliver examinations, evaluations, and other healthcare services that would previously have been provided only in an office setting,” the bulletin states that “WHD will consider a telemedicine visit with a health care provider as an in-person visit,” provided certain criteria are met.
To be considered an in-person visit, the visit must include:
- An examination, evaluation, or treatment by a health care provider;
- Be permitted and accepted by state licensing authorities; and
- Generally, be performed by video conference.
Phone calls, letters, emails, or text messages remain insufficient, alone, to satisfy the in-person visit requirement.
We will continue to post updates on new guidance from DOL and other federal agencies on our website.
For more information on how this DOL guidance may impact your business, please call 214.615.6391 or email Janet A. Hendrick.
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