The U.S. Department of Labor (DOL) earlier this month issued guidance regarding the Family and Medical Leave Act (FMLA) and Fair Labor Standards Act (FLSA) and how they apply to remote workers.
Of course, companies have been wrestling with the intricacies of employment law for remote and hybrid workers since the pandemic. And even as a return-to-the-office push has gained steam in recent months, the guidance from the DOL is likely welcome.
At a high level, the information from the field assistance bulletin includes:
- Employee eligibility (FMLA)
- Employee worksites (FMLA)
- Breaks and meal times (FLSA)
- Breaks for pumping breast milk (FLSA)
With the guidance coming down Feb. 9, 2023, employers may now have a bit more clarity on how to apply the FMLA and FLSA for remote employees.
Do remote employees count towards FMLA?
Starting with the FMLA, the guidance outlines eligibility.
As way of background, the FMLA applies to employers with 50 employees in a 75-mile radius. With remote workers, this standard can make determining an eligible employer under the FMLA a bit tricky.
Still, the bulletin says employees who work from home are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job:
- When they have worked for the employer for at least 12 months
- Have at least 1,250 hours of service for the employer during the 12-month period immediately preceding the leave
- Work at a location where the employer has at least 50 employees within 75 miles
Meanwhile, the employee’s worksite is another section of the guidance the DOL bulletin addresses.
For FMLA eligibility purposes, the employee’s home is not a worksite. That means when an employee works from home or otherwise teleworks, their worksite for FMLA eligibility is the office where they report or from where they are given their assignments.
So, if 50 employees are employed within 75 miles from the employer’s worksite, the employee meets that FMLA eligibility requirement. The count of employees within 75 miles of a worksite includes all employees whose worksite is within that area, including employees who work remotely and report to or receive assignments from that worksite.
FMLA Examples for Remote Employees
The DOL provides two examples of applying the FMLA to remote workers:
Example 1
Employee A works for a department store as a customer service representative. Following a weather emergency, the store is temporarily closed to everyone except essential personnel and building maintenance staff. Employee A and her supervisor perform their duties by teleworking from their homes during the period the store is temporarily closed. For FMLA eligibility purposes, the store remains Employee A’s and her supervisor’s worksite.
Example 2
Employee B works in data processing for an advertising company headquartered in a large city and teleworks from her home more than 75 miles away. Many of the employees in Employee B’s department telework from different cities and states. All teleworking employees are assigned projects for data analysis from the manager who works at the company headquarters. Employee B’s worksite, for FMLA eligibility determination, is the company’s headquarters. The company’s headquarters is also, under the FMLA, the worksite for the data processors in Employee B’s department who telework from different cities and states but report to and receive assignments from their manager at headquarters. There are 300 total employees who work at or within 75 miles of the company’s headquarters. Thus, the employee is considered to be employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite even though she herself does not work within 75 miles of the company headquarters.
FLSA and Remote Employees
Moving on to the FLSA guidance, the bulletin focuses on tracking hours for nonexempt employees who may be working from home or another place off site.
Employers are reminded that “hours worked” is not limited only to time spent on “active productive labor but may, for instance, include time spent waiting or on break,” reads a portion of the bulletin. The workday begins with the employee begins their first “principal activity” and ends when they stop this type of work.
While this language can open the door to vague interpretations or potential employee abuse, the bulletin is clearer on meal and regular breaks, as well as breaks for pumping breast milk.
Meal and Rest Breaks
When it comes to breaks taken during the workday, FLSA regulations say that short breaks of 20 minutes or less are generally counted as compensable hours worked. But longer breaks — those of 30 minutes or more — “during which an employee is completely relieved from duty, and which are long enough to enable (the employee) to use the time effectively for (their) own purposes are not hours worked.”
And these standards also apply to remote employees.
Of course, it’s incumbent on the employer to know whether an employee is actually working or not, and federal officials in 2020 released a field assistance bulletin regarding tracking hours for remote employees.
Breaks for Pumping Breast Milk
Meanwhile, the FLSA protections for nursing mothers also apply to remote workers, including reasonable time to express breast milk and having a private place to do it.
And that privacy factor is outlined in the bulletin. It includes client worksites, as well as being “free from observation by any employer provided or required video system, including a computer camera, security camera, or web conferencing platform, when they are expressing breast milk regardless of the location they are working from.”
However, if an employee attends a Zoom meeting while off camera to express breast milk, that time must be paid.
As a reminder, employers are not required by the FLSA to pay nursing employees for breaks taken to express milk, though state laws may require such compensation. But when an employer provides compensated breaks, an employee who uses that break time to express milk must be paid for the break.
FLSA Examples for Remote Employees
The DOL also provides examples of applying FLSA regulations regarding breaks for remote workers:
Example 1
Employee A works at a shared workspace not controlled by their employer and takes a break for lunch from 12:30 p.m. to 1 p.m. During this break, Employee A is interrupted by work phone calls, with each call lasting several minutes. Because the meal break period of 30 minutes is frequently interrupted by work phone calls, Employee A would not be considered relieved of all duties and the meal break period would have to be counted as hours worked.
Example 2
Employee B works from home and is allowed flexibility to set their own schedule. Employee B starts works at 7 a.m., takes a one-hour break from 8 a.m. to 9 a.m. to get their children ready for school, and resumes work at 9 a.m. The period between 8 a.m. and 9 a.m. is not work time under the FLSA because Employee B is completely relieved from duty, chooses when to resume work, and is able to effectively use the time for their own purposes.
Example 3
Employee C teleworks from home and has an arrangement with their employer where Employee C works from 9 a.m. to 4 p.m., takes a three-hour break from 4 p.m. to 7 p.m., and returns to work at 7 p.m. and works until 8 p.m. Employee C is free to do whatever Employee C chooses during this three-hour break, including staying at home to make dinner and do laundry, for example. Under these circumstances, because Employee C is relieved from duty and is able to effectively use the period between 4 p.m. and 7 p.m. for their own purposes, that time is not work time under the FLSA.
Conclusion
The rise of remote work has created a new set of issues for employers, and the FMLA and FLSA are no exception.
The underlying them of the DOL’s field assistance bulletin about the FMLA and FLSA for remote employees is to ensure employees have a handle on their workforce:
- Where do your employees live in relation to headquarters or a traditional worksite?
- How accurate are your organization’s recordkeeping processes?
- What is compensable time when an employee is idle?
In the new world of employment law and remote workers, compliance is only becoming more complex.
This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.
