Employers Take Note: Dept. of Labor Issues Guidance for Telework Fair Practices
By Mark Zeidman, Chair, Employment Law Group
Until now, the rules for how employers should treat remote workers under the Fair Labor Standards Act (FLSA) and the Family and Medical Leve Act (FMLA) have not been completely clear. This is particularly challenging post-COVID where a much larger percentage of the workforce is now working remotely.
On Feb. 9, 2023, the Department of Labor Wage and Hour Division issued a Field Assistance Bulletin concerning the application of certain provisions of the FMLA and FLSA to remote (“teleworking”) employees. In short, and for the first time, there is clarity around how to handle break time, nursing employees, and FMLA geographic eligibility rules for remote employees.
At FBFK, many of our clients have employees who work remotely, either as a continuation of practices initiated during the COVID-19 pandemic, or as a regular practice for businesses which have little or no physical infrastructure. In addition, there are many employers with employees being allowed to work remotely as an accommodation for a disability.
That said, the onus is on employers to take note of these new guidelines as they address three specific issues: 1) compensation under the Fair Labor Standards Act (FLSA), 2) protections under the FLSA that provide reasonable break time, particularly for nursing employees, and 3) eligibility rules for teleworking employees under the Family Medical Leave Act (FMLA).
The WHD says that breaks of 20 minutes or less must be counted as compensable hours worked, regardless of whether the employee works from home or at the employer’s worksite. Employees commonly take short breaks to go to the bathroom, get a cup of coffee, stretch their legs, and other similar activities. These short breaks benefit the employer by reducing fatigue and helping employees maintain focus. Non-working periods of longer than 20 minutes may be excluded from hours worked as long as the employee is completely relieved from duty and is able to effectively use the time for his or her own purposes. The WHD gives as an example an employee who takes an hour to get children ready for school. As long as the employee is using the time totally for his or her own purposes, it is not compensable. How to verify the time spent is not addressed.
The WHD reminds employers that the FLSA requires them to provide reasonable break time and private space to remote employees for expressing breast milk. Employees must have a place to express breast milk that is “shielded from view,” which means that a remote employee is free from observation by any employer-provided or required video system, including a computer camera, security camera, or web conferencing platform. These can be unpaid as long as the employee is completely relieved from duty. However, if the employee chooses to (off camera) attend a video meeting or conference call during a lactation break, the employee must be paid for the time since it is not really a break.
Defining a Worksite
For FMLA purposes, “worksite” was a question for remote workers. To qualify for FMLA leave, an employee must work at a location where the employer has at least 50 employees within 75 miles. When employees work from home, their worksites are not their homes, but the office(s) to which they report or from which their assignments are generated. As long as 50 or more employees are employed within 75 miles of the location to which the employee reports or from which their assignments are generated, the employee meets the 50/75 requirement. Those numbers include the remote employees who work or report to those sites.