DOL Issues Guidance on Managing Telework, including when the FLSA Requires Employers to Compensate for Breaks and When Employees Qualify for Leave under the FMLA

AJ Peters, Of Counsel

On Thursday, February 9, 2023, the U.S. Department of Labor (DOL) issued guidance that provides employers with a look at how the agents who enforce the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) will apply these laws to teleworking arrangements. Field Assistance Bulletin (FAB) 2023-1[1] directs agency officials on the application of FLSA and FMLA for employees working remotely, away from employer facilities. Since the start of the COVID-19 pandemic, these are frequently employees who work from home.

Break Periods and Hours Worked for Remote Employees Under the FLSA

The DOL applies the FLSA in nearly identical terms for remote work as on-site work.  The agency explains that, regardless of work location, short breaks of 20 minutes or less are generally counted as compensable hours worked.  Longer breaks “during which an employee is completely relieved from duty” and able “to use the time effectively for [their] own purposes are not hours worked.”  For employees who work from home, the DOL gives examples of short breaks such as the using the bathroom or getting a cup of coffee.  Longer breaks would include “bona fide meal breaks (typically 30 minutes or more),” which could include cooking a meal, doing laundry, running an errand, or other activities, provided that “[t]o be completely relieved from duty, the employee must be told in advance that they may leave the job and they will not have to commence work until a specified hour has arrived.”  Employees may be allowed to set their own schedule, but employers would be advised to establish expectations.

The DOL previously emphasized in FAB 2020-5 at the height of the pandemic that the employer bears the burden of compensating employees for work the employer has “suffered or permitted” employees to perform.  Accordingly, management must exercise control to see that work is not performed if the employer does not want it performed, and must enforce rules for remote workers if the employer wishes to maintain limits on compensable work hours.

FAB 2023-1 also emphasizes an employer’s obligations to provide “reasonable break time” and an appropriate, private location for nursing mothers to express breast milk.  These concerns most frequently arise in the case of remote workers performing work at, for example, a client’s location.

Remote Workers and FMLA Eligibility Thresholds

The DOL also addresses FMLA leave eligibility in the context of remote work.  FMLA eligibility requires an employee to have worked at least 1,250 hours in the previous 12 months.  FMLA leave excludes employees who work at a “small worksite” with fewer than 50 employees in a 75-mile radius.  FAB 2023-1 clarifies that, in the case of remote workers, the “worksite” for purposes of meeting or exceeding the 50-employee threshold is the location the employee “reports to” or from which “their assignments are made.”  In other words, even if many remote employees reside well beyond 75 miles from company headquarters, but more than 50 employees report to and get their assignments from company headquarters, no small worksite exception applies — even the most remote of those workers may be eligible for FMLA-protected leave.

Please feel free to reach out to Campbell Litigation with any questions or concerns you may have about how to apply FLSA and FMLA rules to teleworking arrangements in your business.  

[1]  https://www.dol.gov/sites/dolgov/files/WHD/fab/2023-1.pdf