DOL guidance for remote workers under FLSA & FMLA

Since the pandemic, companies have dealt with the complexities of employment law related to remote and hybrid workers. It’s estimated that as of 2022, 26% of employees in the United States work remotely, and it’s projected that the number will reach 36.2 million by 2025. During the pandemic, 40% of workers reported being more productive while working from home compared to working in an office. Additionally, 16% of U.S. companies operate completely remotely. 

In February, The federal Department of Labor’s Wage and Hour Division (WHD) released guidance regarding the Fair Labor Standards Act (FLSA) and the Family and Medical Leave Act (FMLA) for remote workers. Although there has been a recent push for employees to return to the office, the Department of Labor (DOL) guidance is still likely to be appreciated.

We’ve covered remote work compliance in a previous article, feel free to check it out if you haven’t already.

The DOL Explains When FLSA, FMLA Cover Remote Employees

The DOL provided clarification on how employers can implement the FLSA for remote workers who are not exempt, as well as the eligibility requirement for hours of service under the FMLA for telecommuters. The Field Assistance Bulletin and Opinion Letter FMLA2023-1-A offer valuable guidance for employers grappling with the complexities of the FLSA and the FMLA. 

Also, the DOL provided an explanation in the opinion letter that employees who are eligible and have serious health conditions that require reduced work schedules may use their available FMLA leave for an indefinite period of time.

We provide an overview of each publication below. If you have any questions about FMLA or FLSA after reading this article and reviewing the two publications, please do not hesitate to contact our team.

The provided guidance is a helpful resource for employers, as it sheds light on the DOL’s perspective on several matters, such as remuneration for telecommuting workers under the FLSA, safeguards for breastfeeding employees who work remotely, and qualifications for telecommuting personnel under the FMLA. The objective of this recent guidance appears to be a reminder to employers that remote workers are still entitled to the safeguards offered by both the FLSA and the FMLA.

New FMLA & FLSA Information Regarding Remote Work

The Field Assistance Bulletin (FAB) No. 2023-1 titled “Telework Under the Fair Labor Standards Act and Family and Medical Leave Act” offers directions and clarification on remote work or telework, the application of FLSA, and FMLA eligibility. 

To provide some context, the Family and Medical Leave Act (FMLA) is applicable to employers having a workforce of 50 employees within a 75-mile radius. However, the inclusion of remote workers can pose a challenge in determining an employer’s eligibility under the FMLA.

Nevertheless, according to the bulletin, employees working from home are entitled to FMLA leave under the same terms and conditions as employees who work on-site at any other location for the employer. This means that they must have worked for the employer for at least 12 months, completed at least 1,250 hours of service for the employer during the preceding 12-month period, and worked at a location where the employer has at least 50 employees within a 75-mile radius.

FAB takeaways for employees and employers regarding FLSA & FMLA

The Field Assistance Bulletin (FAB) provides instructions on:

• how to calculate hours worked for teleworking employees
• how to apply FLSA protections to teleworking employees, including reasonable break time for nursing employees
• how to apply eligibility rules under the FMLA to teleworking employees or those working away from the employer’s facility.

Regarding FMLA, the FAB clarifies that teleworking employees are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job. Employers should apply the FLSA compensable hours of work principles when determining the hours-of-service requirement for FMLA eligibility. The employee’s personal residence is not considered a worksite, but the office to which the employee reports or from which their assignments are made is the determining factor in assessing the teleworking employee’s worksite. 

For instance, consider a company with 75 employees, many of whom work from different locations but receive tasks from the company’s headquarters. In this case, the company would only need to have 50 of its employees meet the FMLA’s eligibility requirements for the law to apply to all employees, including those who work from home. This means that more employees may be eligible for FMLA leave than previously thought, which is an important consideration for employers with remote workers.

Breaks and nursing time for remote workers

To begin with, the Department of Labor has stated that the Fair Labor Standards Act requires employers to compensate their employees for break time, regardless of whether the employee is working at the employer’s site or from home. For breaks that last less than 20 minutes, the employer must provide compensation. However, for longer breaks, the employer is not required to provide compensation as long as the employee is entirely relieved of their duties. 

This means that either the employer notifies the employee beforehand that they may leave the job and not work until a specific time or the employee can freely choose when to resume work, and the break is long enough to serve the employee’s needs.

The DOL also addressed the FLSA mandate for employers to provide adequate break time and private space for employees for their nursing a child. The DOL emphasized that this requirement extends to employees working remotely, and the private space should be “shielded from view.” This includes ensuring that the employee is not observed by any employer-provided or required video system. Additionally, the DOL reiterated that breaks for nursing must be compensated if the employee is not entirely relieved from their duties during the break. For example, if the employee is attending a video meeting from home with the camera off while nursing, the break is not completely free from work responsibilities.

DOL Opinion Letter. FMLA Explanations and Applications

The Department of Labor’s WHD Opinion Letter FMLA2023-1-A explains how the Family and Medical Leave Act (FMLA) can be used to reduce the work hours of employees who have chronic serious health conditions. 

While the letter provides detailed legal principles and their application, it clarifies that an eligible employee who typically works more than 8 hours per day but is unable to do so due to an FMLA-qualifying reason can use FMLA leave for the remaining hours of each shift beyond 8 hours. As a result, the employee’s work schedule is reduced, and these hours are designated as FMLA leave and subtracted from the employee’s entitlement, provided there is still FMLA time remaining.

The letter further explains that if an employee never uses all of their FMLA leave, they may continue working the reduced schedule indefinitely. This approach applies to any standard schedule, not just 8-hour days.

Additionally, the Opinion Letter emphasizes that the protections and requirements of the FMLA are different from those of the Americans with Disabilities Act (ADA). It further notes that an employee can be entitled to both sets of protections simultaneously. As a result, employers must handle the FMLA analysis and ADA reasonable accommodation analysis separately and concurrently.

Also, the Opinion Letter serves as a reminder to employers that the FMLA guarantees employees up to 12 work weeks of leave annually. The number of hours available for leave is determined based on the employee’s regularly scheduled workweek. 

For instance, if an employee works 40 hours per week, they are entitled to 480 hours of FMLA leave every 12 months. However, if the employee’s regular workweek exceeds 40 hours, they are entitled to more than 480 hours of FMLA leave every 12 months.

Key Takeaways for Employers from the New DOL Guidance

To summarize, employers should be aware that employees who are covered by the FLSA and work remotely are entitled to the same protections for rest, meals, and nursing breaks as employees who work at the employer’s physical work site. Additionally, employees who telework are also eligible for job-protected leave under the FMLA in the same way as employees who work on-site. 

Employers with remote workforces should review their wage and hour and FMLA policies to ensure that they accurately reflect the new guidance. Also, it’s important to keep in mind that the location of remote employees’ residences will still be relevant for determining eligibility for paid sick leave and paid family leave under state or local laws.

Furthermore, employers should ensure that their FMLA policies align with the new guidance regarding intermittent leave, which applies to all eligible employees, not just remote workers. They should also consider how their FMLA policy may apply when an employee requests a reduced schedule as an accommodation.

In the current landscape of employment law and remote work, ensuring compliance is becoming increasingly intricate. Our team of experts is here to offer guidance and support regarding these new changes to make sure you stay compliant with the new law!