Sick days are built in to nearly every workforce. As employers are aware, depending on an employee’s position and the duration of his or her time off, sick time may slow production or delay deadlines. On the flip side, employees want to work for employers that empathize with employees’ health needs and, further, offer a good benefits package to absorb some healthcare-related costs.

To balance these interests—work productivity, time efficiency, a healthy workforce, and valuable healthcare options—more and more employers are offering telemedicine to their employees as a healthcare benefit.

What Is Telemedicine?

Telemedicine refers to the administration of healthcare through communication and information technology, for example, doctor visits conducted via phone, video, or text messages.. An individual might send his or her dermatologist a photo of a new mole and, after a telephone consultation, receive a diagnosis without having to visit a doctor’s office. In addition to offering patients the convenience of seeing doctors without a visit to a doctor’s office, telemedicine, by facilitating remote doctor visits, gives patients a larger array of physicians to choose from—since a patient can have an online appointment with a doctor practicing anywhere with an Internet connection.

What Are the Legal Limits and Risks?

Telemedicine has many advantages in addition to some drawbacks and risks. What happens to an employee’s texts including his or her medical information after it is texted to a doctor? What if something goes wrong with the patient’s medical treatment, but the doctor lives across the country? What are the costs of implementing a telemedicine benefit to the employer? As different states expand regulations on telemedicine to allow patients more remote healthcare options, the legal issues that accompany this benefit have yet to emerge. It is important for employers to understand the risks associated with implementing a telemedicine program before offering this new healthcare option to their employees.

Potential Risks

Some legal risks that cross all jurisdictions include the following:

Venue: If a patient files a claim against a physician based in a different state or country, it is difficult to determine which laws will govern. It could be that the patient’s state law will prevail since the care is being provided in that state, but this question remains open.

Medical Malpractice: Some medical malpractice suits boil down to a misunderstanding or miscommunication between the patient’s expectation and the physician’s explanation. Telemedicine can further complicate communications that could lead to a malpractice claim by introducing new methods of communication between doctors and patients.

Records Security: A patient’s personal medical information is protected by a number of laws, such as the Health Insurance Portability and Accountability Act of 1996. Through telemedicine, a patient’s sensitive records that are stored on a physician’s smartphone or tablet could be at risk of a data breach.

Misdiagnoses: Few laws regulate the quality of telemedicine video feeds or pictures that are sent to physicians for diagnoses. It is possible that grainy or distorted images could lead to an incorrect diagnosis and prescriptions for inappropriate medicines—a circumstance that is less of an issue with in-person examinations. In such cases, a physician could be subject to professional liability claims and the patient could be at risk for an incorrect treatment plan.

Eligibility Under Other Laws: Telemedicine could also impact eligibility under federal, state and local leave laws. For example, it is unclear whether a telemedical employee-doctor relationship would qualify as continuing medical treatment sufficient to demonstrate a “serious health condition” under the Family and Medical Leave Act. Further, the logistics involved in obtaining the required medical certification and filling out “fit for duty” forms could prove problematic with interchangeable and remote doctors. It may also prove difficult for teledoctors to evaluate work restrictions for needed accommodations under the Americans with Disabilities Act.

Benefit Plan Costs and Options for Employers

Telemedicine may be attractive to employers because it is generally less expensive than other health benefits plans typically offered to employees. For example, a telemedicine consult for self-insured employers could cost as little as $45 if the entire cost were borne by the employer (and $0 if the cost were passed to the employee).

Employers also have a choice in the scope of telemedicine offerings. Basic telemedical consults are often limited to simple medical issues, but the options are expanding to include more medical specialties and treatments such as dermatology, behavioral health, and weight loss programs.

Employers that elect to offer telemedicine may want to take precautions to ensure it is properly administered to its employees. If employers offer a health savings account-eligible high deductible health plan and are unable to pay a portion of the consult fee, then the cost must be directly applied to the employee’s annual deductible.

The Future of Healthcare Benefits

The one guarantee about telemedicine is that it is growing and may be the new normal in the future. Additionally, employees may come to expect the option of telemedicine for their healthcare. This may be good news for employers, as telemedicine likely means fewer hours the employee is out of the office and lower healthcare costs. But the regulations surrounding this new way of practicing medicine are expanding too. Until the laws catch up to the technology, employers may want to be wary of the legal risks associated with this convenient new healthcare communication method.