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February 15, 2023

DOL issues guidance of FMLA and FLSA Coverage for Remote Workers

The U.S. Department of Labor (DOL) issued a field assistance bulletin (FAB) on Feb. 9 clarifying how the Fair Labor Standards Act (FLSA) and how the Family and Medical Leave Act’s (FMLA’s) hours-of-service eligibility requirement apply to nonexempt remote workers. 

The DOL also concurrently published an opinion letter clarifying that eligible employees with serious health conditions who require reduced work schedules may use available FMLA leave indefinitely. 

While  the FAB (FAB 2023-1) doesn’t change the FLSA or the regulations, but it does provide employers with context on how the DOL views FLSA compliance with regard to remote workers. For example, the bulletin states that breaks of 20 minutes or less – for example, time taken to use the restroom, get a cup of coffee, or stretch – is compensable and counted as hours worked. The FAB notes that bona fide meal breaks of 30 minutes or more are not counted as work time when a nonexempt employee is completely relieved from duty. Regarding break time for pumping breast milk, employers must provide an appropriate place for an employee to pump breast milk when the employee is working offsite, such as at a client worksite. However, employers are not required to pay nursing employees for breaks taken to express milk under the FLSA, though state laws may require such compensation. For example, in California, Under the statute, the lactation break, should run concurrently with other break times already provided to the employee if possible. If the lactation break time does not run concurrently with required rest break times, the lactation break time is unpaid. 

According to the FAB, when an employee works from home, the employee’s worksite for FMLA eligibility purposes is the office to which the worker reports or from which assignments are made. If 50 employees are employed within 75 miles of the worksite, the employees meet that FMLA eligibility requirement. 

The FAB goes on to say that for employees who do not have a fixed worksite, the worksite is the site to which they are assigned as their home base, from which their work is assigned or to which they report. 

Meanwhile, the DOL also issued Opinion Letter 2023-1-A, stating that employers should consider their legal obligations under the FMLA and the Americans with Disabilities Act (ADA) when considering an employees’ requests to work a reduced schedule.  The letter reminds employers that they cannot reject a request for a reduced schedule under the FMLA by arguing that such a request should be addressed under the Americans with Disabilities Act Amendments Act. Finally, the letter reminds employers that an employee is entitled to 12 workweeks of leave per 12-month leave year, which may exceed 480 hours of allowable FMLA time.