DOL Issues New Policy on FMLA Leave and Notice Requirements and New Rule on Worker Classifications

Legal Alert

January 6, 2021

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DOL Adopts Telemedicine Policy to Support FMLA Leave and New Notice Requirements

On December 29, 2020, the U.S. Department of Labor (“DOL”) issued a Field Assistance Bulletin regarding the use of telemedicine to establish a serious health condition under the Family and Medical Leave Act (“FMLA”).

In light of the COVID-19 pandemic, more and more health care professionals are utilizing telemedicine to deliver examinations, evaluations, and other healthcare services. On July 20, 2020, the DOL issued FAQ#12 permitting employers to accept telemedicine visits as “in-person visits” with a health care provider for purposes of establishing a serious health condition under the FMLA until December 31, 2020. The Field Assistance Bulletin extends this concept permanently.

A telemedicine visit will qualify as an “in-person visit” as required by FMLA regulations if the visit is: (1) an exam, evaluation, or treatment by an FMLA-qualifying healthcare provider, (2) accepted by the respective state licensing authorities, and (3) by video conference. This new policy still provides that communication methods such as a simple telephone call, letter, email, or text message will not suffice as an in-person visit for purposes of establishing an employee’s serious health condition.

Given the prevalence of remote work, the DOL also issued a bulletin permitting employers to give electronic notice to satisfy the notice requirements under the Fair Labor Standards Act (“FLSA”), the FMLA, the Employee Polygraph Protection Act (“EPPA”), and the Service Contract Act (“SCA”). The electronic notice must be as effective as a hard copy posting, meaning that an employee must know where and how to access the required postings electronically.

DOL’s New Rule on Worker Classification

On January 6, 2021, the DOL issued a Final Rule regarding a multifactor test for determining whether workers are independent contractors. Under the FLSA, an independent contractor is not considered an “employee,” meaning the minimum wage or overtime provisions of the FLSA do not apply. In the Final Rule, the DOL adopts an “economic reality” test to determine a worker’s status as an independent contractor. There are two “core factors”: (1) the nature and degree of the worker’s control over the work; and (2) the worker’s opportunity for profit or loss based on initiative, investment, or both. The DOL finds these two factors the most probative of whether workers are economically dependent on someone else’s business (an employee) or are in business for themselves (an independent contractor). In fact, if both of these factors point towards the same classification, then there is a substantial likelihood that the classification is appropriate. The three remaining factors include: (3) the amount of skill required for the work, (4) the degree of permanence of the working relationship between the individual and the potential employer, and (5) whether the work is part of an integrated unit of production. This new rule refines and adopts general guidance and standards previously used by the courts and the DOL.

This rule will not take effect until March 8, 2021. This gives President-elect Joe Biden’s administration a chance to withdraw this Final Rule prior to it going into effect.

For more information, please contact your Labor & Employment law counsel at Smith, Gambrell, & Russell, LLP.