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U.S. Department of Labor Issues Guidance Supporting Workplace Flexibilities through Virtual Communication

The U.S. Department of Labor’s Wage and Hour Division (WHD) announced new guidance in its ongoing efforts to support the American workforce during the coronavirus pandemic. As employers continue to meet the challenges presented to their businesses by the coronavirus, and as telework arrangements and virtual communication increasingly provide solutions, WHD continues to provide guidance to maximize the benefits of these arrangements for employers and workers alike. The guidance comes in the form of two new Field Assistance Bulletins (FABs):

FAB 2020-7: Guidance on FLSA, FMLA, EPPA and SCA Notices

Field Assistance Bulletin 2020-7 addresses when the DOL will consider electronic posting by employers (by email, or an internet or intranet website) sufficient to provide employees with required notice of their statutory rights under a variety of federal labor laws.

The Bulletin was issued in response to employer questions about the use of electronic means to post notices under the following laws, as more employees work remotely due to the COVID-19 pandemic:

  • The Fair Labor Standards Act (FLSA);
  • The Family and Medical Leave Act (FMLA);
  • The Employee Polygraph Protection Act (EPPA); and
  • The Service Contract Act (SCA).

The Bulletin summarizes the current statutory and regulatory posting requirements and explains how electronic means of satisfying these requirements can be achieved under the new guidance.

FAB 2020-8: Telemedicine and FMLA Certification

Field Assistance Bulletin 2020-8 provides enforcement guidance regarding the use of telemedicine when establishing a serious health condition under the Family and Medical Leave Act (FMLA).

FMLA job protections are available to eligible employees who need to take time off work due to their own serious health condition or the serious health condition of a spouse, child or parent.

A serious health condition must involve either inpatient care or continuing treatment by a health care provider. “Treatment” includes in-person medical examinations and evaluations by a health care provider and excludes phone calls, letters, emails or text messages.

However, as part of its response to the COVID-19 public emergency, the DOL issued FAQ #12, allowing for telemedicine to be considered as in-person visits under the FMLA if certain criteria are met. The DOL will consider a telemedicine visit with a health care provider as an in-person visit if the telemedicine visit:

  • Includes an examination, evaluation or treatment by a health care provider; 
  • Is permitted and accepted by state licensing authorities; and
  • Is generally performed by videoconference.

Communication methods that do not meet these criteria are insufficient, by themselves, to satisfy the regulatory requirement of an “in-person” visit.

Next Steps for Employers

Employers should review the guidance to determine whether they may have any applicability to their business operations.

HR Works, headquartered in Upstate New York, is a human resource management outsourcing and consulting firm serving clients throughout the United States for over thirty years. HR Works provides scalable strategic human resource management and consulting services, including: affirmative action programs; benefits administration outsourcing; HRIS self-service technology; full-time, part-time and interim on-site HR managers; HR audits; legally reviewed employee handbooks and supervisor manuals; talent management and recruiting services; and training of managers and HR professionals.