Hunton Employment & Labor Perspectives

On February 9, 2023, the Department of Labor Wage and Hour Division issued a Field Assistance Bulletin concerning the application of certain provisions of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to teleworking employees.  The bulletin provides guidance on compensable time, breaks for nursing employees who are teleworking, and FMLA eligibility rules for remote employees. 

Short Breaks of 20 Minutes or Less

The bulletin emphasizes that short 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.  The DOL reasons that, whether working at a company facility or from home, employees commonly take short breaks to go to the bathroom, get a cup of coffee, stretch their legs, and other similar activities.  Because such short breaks primarily benefit the employer by reducing fatigue and helping employees maintain focus, such short breaks primarily benefit the employer.  Off-duty periods that are 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.

Break Time and Privacy for Nursing Employees

The bulletin reminds employers of their obligation under the FLSA 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.  Lactation breaks can be unpaid as long as the employee is completely relieved from duty.  However, if the employee chooses to attend a video meeting or conference call off-camera during such a break, the employee is not relieved from duty and must be paid for the time.

Telework and the FMLA

Lastly, the bulletin addresses the meaning of “worksite” for FMLA eligibility purposes when employees work remotely.  Among other eligibility criteria, to qualify for FMLA leave, an employee must work at a location where the employer has at least 50 employees within 75 miles.  When an employee works from home, their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are generated.  This means that as long as 50 employees are employed within 75 miles of the location to which the employee reports or from which their assignments are generated, the employee meets that requirement for FMLA eligibility.  The count of employees within 75 miles of a worksite includes employees who telework and report to or receive assignments from that worksite. 

*** While the bulletin does not alter existing regulations, it is a reminder that the DOL’s longstanding view of what constitutes hours worked applies equally to non-exempt employees working remotely.