The Department of Labor’s Wage and Hour Division (“WHD”) recently issued Field Assistance Bulletin (FAB) No. 2023-1 to address breaks for employees who telework under the Fair Labor Standards Act (“FLSA”), and application of the Family and Medical Leave Act (“FMLA”) to teleworking employees.
The FLSA requires covered employers to pay nonexempt employees for all hours worked, including work performed in their home or otherwise away from the employer’s premises or job site. 29 C.F.R. § 785.11-.12. When it comes to breaks taken during the workday, the FLSA’s general principle that short breaks of twenty minutes or less are generally counted as compensable hours worked. 29 C.F.R. § 785.18. The WHD’s latest guidance explains that this principle applies regardless of an employee’s location.
Similarly, the FLSA’s protections for employees who are breastfeeding apply to covered employees who telework. Under the FLSA, employers must provide covered employees “reasonable break time” to express breast milk for one year after the birth of the employee’s child. 29 U.S.C. § 218d(a). Employers are not required to compensate nursing employees for breaks taken for the purpose of expressing milk under the FLSA unless the employer provides compensated breaks to all employees as a matter of course (although compensation may be required under applicable state law). But if an employee is not completely relieved from duty during these breaks, the time must be compensated as work time, just like any other breaks where the employee is not completely relieved of duty. 29 U.S.C. § 218d(b). For example, a remote employee who attends a video meeting or conference call while pumping – even if off camera – is generally not relieved from duty and must be paid for that time.
For FMLA eligibility purposes, an employee must be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. Under the FMLA, an employee’s personal residence is not a worksite. 29 C.F.R. § 825.111(a)(2). The WHD’s FAB No. 2023-1 explains that when an employee works from home or other remote location, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.
WHD also recently issued opinion letter FMLA2023-1-A, which explains that an eligible employee may use available FMLA leave to limit their workday when they have a serious health condition requiring a reduced work schedule indefinitely.
Ballard Spahr’s Labor and Employment Group regularly advises clients on managing a remote workforce and are available to assist employers in complying with federal and state law requirements.