The U.S. Department of Labor (DOL) recently added questions #12-13 to its frequently asked questions about administering the Family and Medical Leave Act (FMLA) in light of COVID-19 (coronavirus). The FMLA provides protected leave when an employee is unable to work due to their own or a family member’s serious health condition. A “serious health condition” is an illness, injury, impairment or physical or mental condition that involves either inpatient care or continuing treatment as defined by DOL regulations.
FAQ #12 states that through December 31, 2020, the DOL will consider telemedicine visits to be in-person visits, and will consider electronic signatures to be valid, 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.
FAQ #13 addresses whether companies can require employees who take FMLA leave for reasons unrelated to COVID-19 to be tested for COVID-19 before they return to work. The FMLA doesn’t prohibit companies from implementing a universal testing requirement for everyone coming onsite, so long it isn’t related to an employee’s exercise of their rights under the FMLA or any other protected activity. Remember that the Americans with Disabilities Act (ADA) generally requires medical inquiries and medical exams of employees to be job-related and consistent with business necessity. The Equal Employment Opportunity Commission (EEOC) has issued its own guidance related to COVID-19.