On Thursday, February 9, 2023, the US Department of Labor (DOL) Wage and Hour Division (WHD) issued Field Assistance Bulletin (FAB) No. 2023-1, entitled, “Telework Under the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act” (FMLA). The FAB confirms that employees who work from home, telework, or work away from their employer-controlled workplace continue to be covered by FLSA and FMLA protections.
For background, the WHD issues guidance primarily through Opinion Letters, Ruling Letters, Administrator Interpretations, and Field Assistance Bulletins (FABs). FABs and Opinion Letters provide WHD investigators and staff with guidance on enforcement positions and clarification of policies or changes in the policy of WHD. FABs typically provide positions reflecting changes or clarifications in the administration of these laws and related regulations based upon court decisions, legislative changes and opinions of the WHD Administrator, and Opinion Letters are official written explanations of what the FLSA or the FMLA requires in fact-specific situations.
Below is a summary of the key highlights from FAB No. 2023-1:
- Short Breaks: Breaks of 20 minutes or less would be treated as compensable (“hours worked”) under the FLSA regardless of whether the employee works from home.
- Meal Breaks and Off Duty Time: Bona fide meal periods (typically, those that are at least 30 minutes or more) are not considered hours worked unless the employee is not fully relieved of duties or the employee is restricted in the use of their time; this would apply regardless of whether the work is performed at the employer’s worksite, from the employee’s home, or at a client’s worksite.
- Break Time for Lactation and Privacy to Pump: The FLSA’s requirement to provide reasonable break time for lactation and a private place in which to do so applies even when an employee is working from home or from a location other than the employer’s worksite. The FAB also explicitly states that when an employee is on a lactation break, regardless of the location from which they are working, they must not be subject to monitoring through the use of items such as a computer camera or security camera.
- Lactation Breaks and Compensable Time: Employers are not required under the FLSA to compensate nursing employees for breaks taken for lactation, but if the employer provides paid breaks to other employees for any reason, then an employee who uses that break time for lactation must be paid in accordance with the employer’s paid break policy.
- FMLA Employee Eligibility and Remote Workers: The determination as to whether an employee has been employed for at least 12 months and has at least 1,250 hours of service, is made as of the date FMLA leave is to start; for most employees, including employees who work remotely, the 1,250 hours is determined based on what is considered compensable time under the FLSA.
- Employee’s Worksite and Remote Workers: In addition to meeting the 12 months of service and 1,250 hours requirements, the FMLA also requires that an employee work at a worksite that has at least 50 employees within 75 miles in order to be eligible for leave. The guidance affirms that an employee’s personal residence is not a worksite and when an employee works from home or otherwise works remotely, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.
In addition to the FAB, the WHD also published opinion letter FMLA2023-1-A. The opinion letter requested that the DOL respond to “whether the Family and Medical Leave Act (FMLA) entitles an employee to limit their workday to eight hours a day for an indefinite period of time because of a chronic serious health condition, where that employee normally works in excess of eight hours a day.” The request also suggests “that it may be preferable to treat this restriction as a reasonable accommodation under the Americans with Disabilities Act (ADA).”
The WHD opined that an FMLA eligible employee with a serious health condition which requires a reduced work schedule indefinitely may use any available FMLA leave to limit their workday, as FMLA requires employers to permit employees to take intermittent or reduced schedule leave when it is medically necessary due to the employee’s serious health condition. The letter stopped short on commenting on the employer’s ADA obligations, but also confirmed that an employer may have obligations under both FMLA and ADA but emphasized that “the requirements and protections of the FMLA are separate and distinct from those of the ADA, and an employee may be entitled to invoke the protections of both laws simultaneously.”
Next Steps for Employers
Both topics covered in the FAB include relevant examples that provide additional context on how the DOL would interpret certain situations. It is recommended that employers review the FAB in its entirety, to learn more.
Specific to meal or break periods, multistate employers should also be mindful of any state or local requirements related to meal and rest periods and/or lactation breaks and their compensability. Where a state or local law differs from federal guidance, employers should adhere to the law(s) that provide the greatest protection and benefits to the employee.
Employers must ensure that they have written reporting procedures that have been communicated to non-exempt employees who work remotely to ensure that they have an accurate accounting of hours worked and that all employees are paid for all hours worked.